AmplifAI Master Terms

These Terms (“Terms”) apply to you as any person or business entity who is a client, customer, or other purchaser of goods or services (“Customer”) from AmplifAI Solutions Inc., a Texas corporation, with its principal place of business at 500 N Central Expressway, Suite500 Plano, TX 75074, or any of its subsidiaries or affiliates (“AmplifAI”).  AmplifAI and Customer may singularly be identified herein as “Party” and collectively as “Parties”. 

These Terms form a legally binding agreement between Customer and AmplifAI concerning AmplifAIs’ provision of goods or services to Customer. If and to the extent there exists any other written agreement executed and in force between AmplifAI and Customer, and any of theseTerms conflict with such agreement, such agreement shall supersede these Terms.

WHEN CUSTOMER PROVIDES ITS CONSENT BY ACCESSING THIS WEB ADDRESS WHICH REFERENCES THESE TERMS, OR PURCHASING GOODS OR SERVICES FROM VENDOR AS A RESULT OF A PURCHASE ORDER OR OTHER REQUEST FROM CUSTOMER, CUSTOMER IS AGREEING TO BE BOUND BY THESE TERMS TO THE SAME EXTENT AS IF A PAPER COPY OF THESE TERMS HAD BEEN MANUALLY EXECUTED, AND CUSTOMER UNDERSTANDS AND INTENDS TO ENTER INTO THESE TERMS ELECTRONICALLY. CUSTOMER REPRESENTS AND WARRANTS THAT CLIENT HAS THE RIGHT,POWER, AND AUTHORITY TO ENTER INTO THE TERMS AND BIND CUSTOMER TO ITS TERMS.   IF CUSTOMER DOES NOT AGREE WITH THESE TERMS, ANY CUSTOMER REQUEST TO PURCHASE GOODS OR SERVICES FROM VENDOR MAYBE REJECTED BY VENDOR. THESE TERMS MAY CHANGE FROM TIME TO TIME AND CUSTOMER AGREES IT IS THE SOLE RESPONSIBILITY OF CUSTOMER TO BE AWARE OF THE CURRENT VERSION OF THESE TERMS.

The Parties hereto agree as follows:

(1) Contract Period. These Terms shall be in effect The Terms from the date Customer accesses these Terms and end one (1) year thereafter (“Initial Term”).   Unless otherwise terminated in accordance with Section 12, these Terms shall automatically renew for additional terms of one (1) year (each a “Renewal Term”) unless either Party shall give notice of cancellation at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. For the purposes of these Terms, the Initial Term or any Renewal Term may be referred to as the “Term”.  The effective period for these Terms shall be automatically extended to the end of the Term of any SOW still in effect.

(2) Statements of Work.  The terms, specifications, and performance criteria for any goods, services, or software,(any, the “Services”) shall be set forth in a “Statement of Work”or “SOW”.  In the event of any conflict between the terms of any SOW and these Terms, unless explicitly and specifically set forth in the SOW as superceding a term or terms contained within the Agreement, the terms of the Agreement shall prevail.   The terms of any SOW, when combined with theseTerms, shall represent the entirety of the terms agreed to by the Parties for such SOW.

(3)  Billing and Payment.  During theTerm, AmplifAI shall issue invoices to Customer in accordance with the terms of any SOW. Payments for invoices are due net thirty (30) from receipt of invoice by Customer.  Services may be terminated by AmplifAI if payments are not received in accordance with this Section 3, after AmplifAI serving of ten (10) day notice via email or fax to Customer.  Upon termination of these Terms by AmplifAI due to nonpayment by Customer, the payment for the remainder of all amounts due under the applicable SOW shall be due immediately.

 

(4) Representations and Warranties.

 

(a)  General.  Each Party represents and warrants that it has the right and authority to enter into theseTerms, and that by entering into these Terms, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.

(b)  Compliance With Laws.  Each Party represents and warrants that no consent, approval or authorization of or designation, declaration, or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of these Terms. Each Party shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it and theseTerms, including copyright, privacy and communications decency laws. 

(c)   Acceptable Use.  Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services. Customer represents and warrants that it will: (a) not use the Services in a manner that: (i) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (ii) will disrupt a third parties’ similar use orLicensed Materials (as defined herein) ; (b) not violate or tamper with the security of any AmplifAI computer equipment or program. If AmplifAI has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or disruptive purpose, AmplifAI may suspend the Services immediately with or without notice to Customer. AmplifAI may terminate theAgreement in accordance with Section 11 if Customer in fact fails to adhere to the foregoing acceptable use standards.

(d)  DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 4 ARE THE ONLY WARRANTIES MADE BY AMPLIFAI. AMPLIFAI MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ANY RELATED SERVICE, OR SOFTWARE. AMPLIFAI HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION GIVEN BY AMPLIFAI, ITS EMPLOYEES, LICENSORS, OR THE LIKE WILL CREATE A WARRANTY.

 

(5) Limitation of Liability.

 

(a)  Damages.  Excluding any liability under Section (5)(b), UNDER NO CIRCUMSTANCES WILL AMPLIFAI OR ANY EMPLOYEE, CONTRACTOR, OR AGENT OF AMPLIFAI INVOLVED IN ADMINISTERING, DISTRIBUTING, OR PROVIDING THE SERVICES, BE LIABLE FOR ANY INDIRECT,INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS,DELETION OF DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO AMPLIFAI’S RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY AMPLIFAI OF THESE TERMS, AMPLIFAI’S LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT PAID TO AMPLIFAI BY CUSTOMER DURING THE THREE (3) MONTH IMMEDIATELY PRECEDING SUCH EVENT OF LIABILITY.

(b)  Infringement. AmplifAI warrants the Licensed Material will not infringe any patent, trademarks, copyright or any proprietary rights of a third party or constitute a misuse or misappropriation of a trade secret. Customer shall notify AmplifAI promptly in writing of any known action brought againstCustomer based on an allegation that Customer's use of any materials infringes any patent, trademark, copyright, or infringes any right of a third party, or constitutes misuse or misappropriation of a trade secret ("Infringement").AmplifAI will defend, indemnify and hold Customer harmless from any such action at AmplifAI’s sole expense, provided that AmplifAI shall have the sole control of the defense of any such action, all negotiations and/or its settlement, andCustomer reasonably cooperates with AmplifAI in such defense. In the event that a final injunction is obtained against Customer’s use of the Services by reason of an Infringement or Customer is otherwise prohibited from using same, AmplifAI shall to the extent possible and at its expense, within sixty (60) days, either(a) procure for Customer the right to continue to use the Services that are infringing, or (b) replace or modify the Services to make its use non-infringing while being capable of performing the same function. If neither option is available to AmplifAI, then Customer, at Customer's option, may terminate theseTerms without penalty or further payment other than payment of fees for use of the Services prior to said termination.

 

(6) Confidential Information.

 

(a)  Definition. For purposes of these Terms “Confidential Information”shall mean information including, without limitation, all data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure, or is of the nature that it would be reasonable for a Party to know, when disclosed, as being Confidential. In addition to the foregoing, Confidential Information shall include third party software, if any, that may be provided under these Terms, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by the applicable licensor. ConfidentialInformation excludes information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is independently developed by the receiving Party without the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; and (v) the receiving Party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving Party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosingParty in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.

(b)  Use.  Customer shall not use any Confidential Information gained during the provision of or use of the Services including but not limited to system views, graphics, processes, and dashboards, to replicate the functionality of the Services within its own systems.

(c)   Nondisclosure.  During the Term and for a period of three (3) years thereafter, each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under theseTerms.  Each Party agrees to only disclose the other Party’s Confidential Information to its employees or agents: (a) with a need to know to further permitted uses of such information; and (b) who are informed of the nondisclosure and non-use obligations imposed by this Section6. Both Parties shall take steps each determines appropriate to implement and enforce such non-disclosure and non-use obligations.

(d)  Terms of Agreement Confidential.  Each of the Parties agrees not to disclose to any third party these Terms, including pricing, without the prior written consent of the other Party hereto, except to advisors, investors, and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law.

(e)  Injunctive Relief. In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching Party will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.

 

(7)  Customer Responsibility.

 

(a)  Use.  Customer is solely responsible for the content of communications transmitted by Customer using theServices, and shall defend, indemnify and hold harmless AmplifAI from and against all liabilities and costs (including reasonable attorneys’ fees)arising from any and all third-party claims by any person based upon the content of any such communications.

(b)  Resale.  Customer is not permitted to resell the Services.

(c)   Purpose.  Customer shall use the Services only for lawful purposes. To the extent deemed necessary by Customer,Customer shall implement security procedures necessary to limit access to the Services to Customer’s authorized users and shall maintain a procedure external to theServices for reconstruction of lost or altered files, data or programs.

(d)  Contacts.  Customer is responsible for establishing designated points of contact to interface with AmplifAI.

 

(8) License.  For the purpose of utilizing the Services in accordance with these Terms, AmplifAI hereby grants to Customer a personal, nonexclusive, nontransferable license during the Term to use all software and related documentation provided by AmplifAI related to or arising from the Services (“Licensed Material”), which may be furnished to Customer under these Terms. Customer agrees to use commercially reasonable efforts to ensure that its employees and users of all Licensed Material hereunder comply with the terms and conditions set out in these Terms. Customer shall not perform any actions related to or that could otherwise reasonably construed as an attempt to reverse assemble, reverse compile, or to derive a source code equivalent to the Licensed Material.  All Licensed Material furnished to Customer under these Terms shall be used by Customer only for Customer’s business purposes.

 

(9)  Data.  

 

(a)  Customer.  All Customer specific data is owned by Customer and is to be strictly considered as ConfidentialInformation. AmplifAI will delete and destroy all copies of Customer data upon the expiration or termination of these Terms. AmplifAI may use profile and non-identifying customer data for internal purposes.

(b)  AmplifAI.  All right, title, and interest in and to the Licensed Material, and all copyrights, patents, trademarks, service marks or other intellectual property or proprietary rights relating thereto, belong exclusively to AmplifAI. , Any modification of software provided as a part of the Services that is performed by Customer that directly or indirectly extends the current capabilities of such software shall be the property of AmplifAI and all copyrights and other rights are hereby assigned to AmplifAI.

(c) AmplifAI may add a data storage fee for clients where we store data for longer than 3 months.

 

(10) Data Back-Up.  AmplifAI will backup Customer data nightly for business continuity purposes.

 

(11) Termination.  


(a)  If a Party fails to perform or observe any material term or condition of these Terms and the failure continues un-remedied for thirty (30) days after receipt of written notice from the other Party, the other Party may terminate these Terms or the applicable SOW provided, however, that where the breach is the failure of payment by Customer of any undisputed amount of any invoice when due, AmplifAI, may, at its option, terminate or suspend Services if Customer does not cure such non-payment breach within seven (7) days following notice to Customer of the delinquency.

(b)  These Terms may be terminated immediately upon written notice by either Party if the other Party becomes insolvent or involved in a liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors. Customer shall be responsible for payment of all charges under a terminatedAgreement incurred as of the effective date of termination.

 

(12) Dispute Resolution.

(a)  If a dispute or claim arises under or related to these Terms (a "Dispute") that the primary business contacts of each Party are unable to resolve, a Party will notify the other Party of the Dispute in writing (email acceptable) with as much detail as possible.  

(b)  Customer and AmplifAI senior business representatives with full authority to resolve the Dispute will use good faith efforts to resolve the Dispute within ten (10) business days after receipt of a Dispute notice.

(c)   If the Parties' senior business representatives are unable to resolve the Dispute or agree upon the appropriate corrective action to be taken within such ten (10) business days, then the Dispute shall be settled by binding arbitration administered by theAmerican Arbitration Association in accordance with its Commercial ArbitrationRules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  

(d)  The place of arbitration shall be determined at the sole discretion of the Party against whom arbitration is being sought, meaning, the Party requesting arbitration shall agree to the location set by the other Party. The arbitration shall be governed by the laws of the State of Texas applicable to contracts, without regard to any otherwise applicable choice of law provisions.

(e)  Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.

(f)   The arbitration shall be conducted by one (1) arbitrator in accordance with the American ArbitrationAssociation ("AAA") Rules for Expedited Procedures, which arbitrator shall be selected in accordance with the AAA Rules for ExpeditedProcedures, and which arbitrator shall have had at least ten (10) years' experience in general commercial transactions and contract disputes.  

(g)  In connection with any arbitration proceeding: (a) no arbitrator shall have been employed by eitherParty hereto during the five (5) year period immediately preceding any arbitration of the Parties; (b) the arbitrator shall be neutral and independent of the Parties; (c) no arbitrator shall be affiliated with any Party's auditors; and (d) no arbitrator shall have a conflict of interest with(including, without limitation, any bias towards or against) either Party.  

(h)  The arbitrator will have no authority to award punitive or other monetary damages not measured by the prevailing Party's actual damages, except as may be required by statute.  The arbitrator shall not award consequential damages in any arbitration initiated herein. The award of the arbitrator shall be accompanied by a reasoned opinion.

(i)    Either Party also may, without waiving any remedy under these Terms, seek from any court of competent jurisdiction located in Texas, any interim or provisional relief that is necessary to protect the rights or property of that Party, pending the establishment of the arbitral tribunal.

(j)    Pending resolution of the Dispute, both Parties will continue to perform their respective undisputed responsibilities under these Terms.

(k)  Nothing contained in this Section (13) will limit or delay the right of either Party to seek injunctive relief from a court of competent jurisdiction, whether or not suchParty has pursued informal resolution in accordance with this Section (13).

 

(13) General Provisions and Force Majeure.

 

(a)  Merger.  These Terms, including any exhibits, SOWs, amendments, or attachments hereto that are incorporated herein, constitute the entire agreement between the Parties and shall be binding on the Parties.  

(b)  Modification.  No modification, termination, or waiver of any provisions of these Terms shall be binding upon aParty unless in writing signed by an authorized officer of the relevantParty(ies).  

(c)   Other Writings.  No provision of any purchase order or other document issued by Customer, which purports to alter, vary, modify, or add to the provisions of these Terms, shall be binding upon AmplifAI or effective for any purpose, unless accepted by AmplifAI in writing.It is further expressly understood and agreed that, there being no expectations to the contrary between the Parties, no usage of trade or other regular practice or method of dealing either within the computer software industry, AmplifAI’s industry, or between the Parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of these Terms or any part thereof.

(d)  Independent Parties.  Nothing contained in these Terms shall be construed as creating a joint venture, partnership, or employment relationship between the Parties, nor shall either Party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.

(e)  Export.  The LicensedMaterials shall not be exported or re-exported in violation of any export provisions of the United States or any other applicable jurisdiction.

(f)   Assignment.  These Terms may not be assigned, sublicensed or transferred, in whole or in part, by Customer without the prior written consent of AmplifAI. Any attempted assignment, subletting or transfer shall be void.

(g)  Severability.  If any provision or provisions of these Terms shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(h)  Waiver.  No delay or failure of AmplifAI or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by AmplifAI or Customer of any breach of any provision of these Terms shall not operate or be construed as a waiver of any subsequent or other breach.

 (i)    Force Majeure.  In the event that either Party is unable to perform any of its obligations under these Terms or to enjoy any of its benefits because of epidemic, pandemic, natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of god, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force Majeure Event”) the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under these Terms shall be immediately suspended. If the period of  seven (7) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice immediately terminate these Terms.

(j)    Certification.  On AmplifAI’s request, no more frequently than annually, Customer shall furnish AmplifAI with a signed certification (i) verifying that the Licensed Material is being used pursuant to these Terms and (ii) listing the locations where the Licensed Material is being used.

(k)  Governing Law.  These Terms shall be governed by and construed under the laws of the State of Texas applicable to contracts made in and wholly to be performed in the State of Texas without regard to conflicts of law.