1. AGREEMENT TO TERMS AND CONDITIONS.
This Agreement is effective, and you agree to be bound by this Agreement, as of the date (a) you first click a button titled “Start for free” or something similar, (b) of the Order Form Date specified on the applicable Order Form incorporating this Agreement, or (c) you first use or access the Services, whichever is earlier (“Effective Date”). If you are accepting this Agreement on behalf of Customer, you represent and warrant that you have the authority to bind Customer to the terms and conditions of this Agreement. If you do not agree to be bound by this Agreement, or do not have the authority to bind Customer to this Agreement, then do not use the Services, click “Create Account”, or execute an Order Form.
- “Account” means an online account registered by Customer or Administrator for the purpose of using the Services.
- “Administrator” means the Customer or a person that Customer has authorized to grant access to the Services to Authorized Users.
- “Aggregate Data” means any data that is derived or aggregated in de identified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Services, including, without limitation, any usage data or trends with respect to the Services.
- “Amberflo IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services or any Professional Services, and Documentation, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
- “Amberflo Platform” means Amberflo’s proprietary hosted technology services, via which Customer can incorporate certain service features in Customer Products depending on the type of Account that Customer has registered for use of the Services.
- “Authorized User” means an individual whom Customer has authorized to Use the Services.
- “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Services or to Amberflo in connection with Customer’s Use of the Services, but excluding, for clarity, any information, data, data models, content or materials owned or controlled by Amberflo and made available through or in connection with the Services.
- “Customer Product” means the Customer’s product in connection with which the Customer uses the Services.
- “Documentation” means the technical documentation, specifications, and other similar materials or instructions in hard copy or electronic form if and as provided by Amberflo to Customer (including any revised versions thereof) relating to the Services, which may be updated from time to time upon notice to Customer.
- “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
- “Order Form” means a mutually executed order form or other mutually agreed upon ordering document issued by Amberflo, in each case which references this Agreement and sets forth the applicable Services and/or Professional Services to be provided by Amberflo.
- “Professional Services“ means the implementation and/or other professional services, if any, to be provided by Amberflo to Customer.
- “Services” means the Amberflo Platform and any applications, products, services, documentation, and software made available through the Amberflo Platform, including access to Amberflo’s specified APIs.
- “Use” means to use and/or access the Services in accordance with this Agreement and the Documentation.
3. SERVICES; ACCESS AND USE.
- Provision of Services. During the Term, and subject to the terms and conditions of this Agreement including the Documentation, Amberflo hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 18(f)), non-sublicensable, revocable right (i) for Customer’s Authorized Users to access the Services and use the features and functionality available to the Customer’s Account, under brand names selected by Customer at Customer’s sole discretion; and (ii) access and use the Amberflo APIs.
- Use Restrictions. Customer will not at any time and will not permit any person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Services to any other person, or otherwise allow any person to use the Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that stores, shares or transmits content which is unlawful, infringing, harmful or that violates any person’s rights, including privacy rights and Intellectual Property Rights, or any other manner or for any other purpose that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (vii) circumvent any access or use restrictions put into place to prevent certain uses of the Services; (vii) attempt to disable, impair, or destroy the Services; or (ix) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Amberflo for use expressly for such purposes; or (x) use the Services, Documentation or any other Amberflo Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
4. REGISTRATION AND USER ACCOUNTS.
- Administrator Accounts. Customer, or Amberflo at Customer’s direction will provision an Administrator account. Administrators may authorize additional Authorized Users to access the Services through the same Account.
- Authorized Users. Customer will not allow any person other than Authorized Users to Use the Services. Customer may permit Authorized Users to Use the Services, provided that Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will immediately notify Amberflo if Customer knows or reasonably suspects that any user name and/or password has been compromised or of any unauthorized use of the Account.
- Changes Made by Authorized Users. Customer is responsible for Authorized Users’ access to the Services. Depending on the types of access rights the Administrator grants to Authorized Users, Authorized Users may be able to subscribe or unsubscribe for Services and delete, copy, or view Customer Materials and data accessible in the Account. Amberflo is not responsible for the internal management or administration of Customer’s Use of the Services. If Customer or Administrator chooses to close or terminate Authorized Users’ access to a Service, Authorized Users will no longer be able to access such Service or any of the Customer Materials within such Service.
- Deleting Accounts. Customer may delete Customer’s Account at any time. Upon termination or expiration of this Agreement, the Account will be terminated, and from the effective date of termination or expiration Customer’s Account and Customer Materials and other information and data entered into the Services will no longer be accessible.
5. THIRD PARTY SERVICES AND SOFTWARE.
- Third-Party Services. Certain features and functionalities within the Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services. Amberflo does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Services.
- Software. Some Services may require Customer to download software. In the event third party software or open source software is made available to Customer via the Services, Customer agrees that use of such software by Customer is subject to Customer’s compliance with the terms of any license accompanying such software, including open source licenses if applicable. The provisions of any third party licenses or open source software license will govern with respect to the applicable third party software or open source software in the event of an inconsistency with those licenses and this Agreement.
6. AMBERFLO’S INTELLECTUAL PROPERTY RIGHTS.
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, Amberflo reserves and, as between the Parties will solely own, the Amberflo IP and all rights, title and interest in and to the Amberflo IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
- Feedback. From time to time Customer or its employees, contractors, or representatives may provide Amberflo with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Customer hereby grants Amberflo a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Amberflo’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.
7. CHANGES TO THE SERVICES.
Amberflo reserves the right to at any time modify or update the Services (or any part or content thereof) without advance notice, provided that such changes to the Services will not materially decrease functionality of the Services. We will not be liable to you or to any third-party for any modification, price change or suspension of the Services.
8. FEES AND PAYMENT.
- Fees. Customer will pay Amberflo usage-based fees at the then-current rates set forth in the pricing page of the Amberflo website, currently located at https://www.amberflo.io/pricing and other rates and amounts set forth in the applicable Order Form (if any), in each case, in accordance with the terms of this Agreement (collectively, “Fees”) and without offset or deduction. Except as otherwise provided in the relevant Order Form, Amberflo will issue monthly invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice.
- Recurring Charges. If Customer has signed up for automatic billing, Amberflo will charge Customer’s selected payment method (such as a credit card, debit card, or other method offered by Amberflo) for any Fees on the applicable payment date, including any applicable taxes. If Amberflo cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Amberflo will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, Amberflo may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.
- Payments. Payments due to Amberflo under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Amberflo or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Amberflo may suspend or terminate Services until all payments are made in full. Customer will reimburse Amberflo for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. Customer is responsible for providing complete and accurate billing and contact information and to update Amberflo of any changes to such information.
- Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Amberflo hereunder, other than any taxes imposed on Amberflo’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Amberflo hereunder, Customer will pay an additional amount, so that Amberflo receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
9. CONFIDENTIAL INFORMATION.
- As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Services and the Documentation will be deemed Confidential Information of Amberflo. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
- The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
- The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
Amberflo will use commercially reasonable efforts to provide Customer with reasonable technical support for the Services in accordance with the applicable support tier described at https://www.amberflo.io/pricing that has been purchased by Customer.
11. CUSTOMER MATERIALS AND DATA.
- Amberflo acknowledges that, as between Customer and Amberflo and except as set forth in Section 11(b), Customer owns and retains all right, title and interest in and to all Customer Materials.
12. REPRESENTATIONS AND WARRANTIES.
- Mutual. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
- Amberflo Indemnification. Subject to Section 13(b), Amberflo will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Amberflo (including reasonable attorneys’ fees) resulting from such Claim.
- Exclusions. Amberflo’s obligations under Section 13(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials or Third-Party Services; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Services that have been provided by Amberflo; (iv) modifications to the Services by anyone other than Amberflo; or (v) combinations of the Services with software, data or materials not provided by Amberflo.
- IP Remedies. If Amberflo reasonably believes the Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Amberflo may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If Amberflo determines that neither alternative is commercially practicable, Amberflo may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Amberflo will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 13 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Services.
- Customer Indemnification. Customer will defend Amberflo against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 3(c), and in each case, will indemnify and hold harmless Amberflo against any damages and costs awarded against Amberflo or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
- Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, PROFESSIONAL SERVICES AND OTHER AMBERFLO IP ARE PROVIDED ON AN “AS IS” BASIS, AND AMBERFLO MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE SERVICES, PROFESSIONAL SERVICES, THE AMBERFLO IP OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AMBERFLO HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, AMBERFLO HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
15. LIMITATIONS OF LIABILITY.
- Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE AMBERFLO IP OR THE PROVISION OF THE SERVICES AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
- Total Liability. IN NO EVENT WILL AMBERFLO’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE AMBERFLO IP OR THE PROVISION OF THE SERVICES OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO AMBERFLO IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT AMBERFLO OR CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
- Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 15 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN AMBERFLO AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
16. TERM AND TERMINATION.
- Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the term specified in the relevant Order Form or, in the event no term was specified when Customer signed up for the Services, at the end of the calendar month during which Customer signed up (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of the same duration as the Initial Term in the Order Form or, if no term was specified when Customer signed up for the Services, one-month periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless, subject to Section 16(c), either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the Initial Term or then-current Renewal Term.
- Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
- Dormant Accounts. In the event Customer’s Renewal Terms are month-to-month and Customer has not incurred any Fees for three (3) consecutive months, Amberflo may terminate this Agreement and Customer’s Account immediately upon notice to Customer.
- Survival. This Section 16(d) and Sections 1, 2, 3(c), 6, 8, 9, 12, 13, 14, 15, 16(e) and 17 survive any termination or expiration of this Agreement.
- Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Sections 3(a) and 3(b) will terminate; (ii) Customer will return or destroy, at Amberflo’s sole option, all Amberflo Confidential Information in its possession or control; and (iii) for up to thirty (30) days following expiration or termination of this Agreement Amberflo may make Customer Materials in the Amberflo Platform available for download in one of the formats offered by Amberflo provided that after such period Amberflo may delete all Customer Materials at its discretion without any obligation or liability to Customer. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
Customer hereby grants Amberflo a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Services; and (ii) Amberflo’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Amberflo and in case studies. All goodwill and improved reputation generated by Amberflo’s use of the Customer Marks inures to the exclusive benefit of Customer.
- Entire Agreement. This Agreement and corresponding Order Forms, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
- Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the Order Form or provided when Customer signed up for the Services or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 18(b). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party; or (iv) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.
- Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
- Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
- Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein.
Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, Amberflo may assign or transfer this Agreement to a third party that succeeds to all or substantially all of Amberflo’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
- Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 9 or, in the case of Customer, Section 3(c), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
- Subcontracting. Amberflo may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Amberflo remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Amberflo will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Amberflo.
- Export Regulation. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Services, software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.
- U.S. Government End Users. The Services, software and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Services, software and Documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue its use of the Services, software and Documentation.
- Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
- No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the Parties and their respective successors and assigns.