Ametra End-User License Agreement (EULA)
IMPORTANT – PLEASE READ CAREFULLY THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”) AS THESE TERMS IMPACT YOUR LEGAL RIGHTS. This This Agreement is a binding, contractual agreement between You, the Licensee, and Syntes, Inc. doing business as Ametra (“Ametra, Ametra, We, Us, Our”). This Agreement applies solely to Your use of services available from us, through the Ametra Site, on your mobile device, or other platforms (collectively the “Services”) and Your use of the software with which this agreement is provided, including all enhancements, versions, and modifications thereof (the “Application”), if provided by Ametra, in its sole discretion. For all purposes hereof, “You”, “Your”, “Customer” refers to any person or use of the Application by any person that you authorize to use the software (an “Authorized User”). By accepting the Agreement or by visiting or using the Services or by installing or using the Application, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement and (2) you represent that you have the authority to enter into this Agreement, personally or if you have named a company as licensee, on behalf of that company (you or any such company, the “Licensee, You”), and to bind the Licensee to the terms of this agreement. When you visit or use the Services or install or access the Application, you represent that you are (i) at least the age of majority in the jurisdiction where you reside or (ii) if you have not reached the age of majority in the jurisdiction where you reside, that you have received permission to use the Application and Services from your parent or legal guardian. You represent that any information you submit to us when using the Application and Services is accurate, truthful, and current. You also represent that your use of the Application and Services does not violate any applicable law or regulation. If You do not agree to all terms and conditions of this Agreement, or if You do not have such authority, You must not accept this agreement or use Services or use or install the Application.
1. DEFINITION OF TERMS
The following terms have the following meanings:
1.1. “App Store” means the marketplace distributing the Mobile Applications (e.g. Google Play or Apple Store).
1.2. “Authorized User” means any employees, independent contractors, agents or representatives of Customer, subject to any limitations or restrictions set forth on an Order.
1.3. “Confidential Information” means all information disclosed by one Party to the other in connection with this Agreement or otherwise obtained by the Receiving Party, which the receiving Party knew or reasonably should have known was the confidential information of the disclosing Party. Confidential Information shall not include information that (i) is publicly available through no fault of the Receiving Party, (ii) is independently developed by the Receiving Party, or (iii) is rightfully obtained by the Receiving Party from independent sources free from any duty of confidentiality. Confidential Information shall include the terms and pricing in this Agreement, but not the fact that this Agreement has been signed, the identity of the Parties or the specific services purchased by Customer.
1.4. “Customer Content” means any information, data, text, logos, pictures, or other materials or content provided by Customer in connection with Customer’s use of the Services, including Personal Data.
1.5. “Documentation” means Ametra’s on-line documentation published on the Ametra Website or in the Application, as updated and amended from time to time.
1.6. “Marks” means name, logo, trademark, trade name, service mark, or other commercial or product designations.
1.7. “Mobile Applications” means Ametra’s Android and Apple iOS mobile applications through which Authorized Users can access and use the Application and Services.
1.8. “Order” means the documentation describing limitations of Customer’s use of and access to the Application and Services as mutually agreed upon by the Parties in writing, including limitations with respect to number of Authorized Users, languages, territories, projects, area, items, colors, and other limitations as may be set forth in the applicable Order.
1.9. “Personal Data” means any data which by itself or combined with other information would identify a specific individual.
1.10. “Proprietary Items” means, collectively, the Services, Mobile Applications, APIs, Connectors, and Documentation; the visual expressions, screen formats, report formats and other design features of the Services, Mobile Applications, APIs, Connectors, and Documentation; all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Services, Mobile Applications, APIs, Connectors, and Documentation; all future modifications, revisions, updates, refinements, improvements and enhancements of the Services, Mobile Applications, APIs, Connectors, and Documentation; all derivative works based upon any of the foregoing; and all copies of all of the foregoing.
1.11. “Services” means the features and functionality of Ametra’s proprietary master data management and product information management platform made available by Ametra to Customer as a service through Ametra’s Applications, solely to the extent set forth in an Order.
1.12. “Ametra Site” means Ametra’s website located at https://ametra.ai.
1. SUBSCRIPTION LICENSE RIGHTS AND OBLIGATIONS
1.1. Software and Service Subscription Rights. Subject to the terms and conditions of this Agreement, We hereby grant to You a limited, non-exclusive, non-transferable, non-sublicenseable right and license (i) to install and operate the Application and to visit and use the Services solely on any compatible Devices owned and operated by You and under Your direct control (the “Authorized Systems”) and solely as permitted by the Usage Rules set forth in the Apple, Inc. (“Apple”) App Store Terms of Service or the Google, Inc. (“Google”) App Store Terms of Service; (ii) to permit You to access the features and functions of the Application and/or Services through such Authorized Systems.
1.2. Mobile Applications Terms. With respect to any Mobile Application downloaded though an App Store, Customer agrees to comply with all applicable third-party terms of the relevant App Store, such as the Apple’s or Google’s App Store’s “Usage Rules”. Customer acknowledges and agrees that the availability of the Mobile Application is dependent on the App Store from which Customer received the Mobile Application. Customer acknowledges that this Agreement is between Customer and Ametra and not with the App Store. The App Store is not responsible for the Mobile Application, the content thereof, maintenance, support services, or warranty therefor, or addressing any claims relating thereto (e.g., product liability, legal or regulatory compliance, consumer protection, privacy, or intellectual property infringement). Customer agrees to pay all fees charged by the App Store in connection with the Mobile Application (if any). Customer agrees to comply with any applicable third-party terms of agreement when using the Mobile Application. Customer acknowledges that the App Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement. For specific terms applicable to Mobile Applications please refer to the Section 9 of this Agreement. Any questions, complaints, or claims with respect to the Mobile Application should be directed to Ametra at legal@ametra.ai.
1.3. Payment Terms. If you have a paid Ametra Service Subscription, fees are non-refundable except as required by law or in our sole discretion. If we terminate your Account without cause, we may refund you the fees for the unused portion of your subscription. If you sign up for our annual or monthly prepaid plans, and cancel those plans later, you are not entitled to a refund for the unused portion of your subscription period. You agree to pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, you authorize us to charge such fees using your selected payment method. By default, Ametra Service Subscription are set to auto-renew and we may automatically charge you for such renewal on or after the renewal date associated with your Account unless you have cancelled the Services prior to its renewal date. We may revise fee rates for the Services from time to time and will provide you with email notice of any changes in fees at least thirty (30) days prior to your Services renewal date. You are responsible for providing complete and accurate billing information to Ametra. We may suspend or terminate your use of the Services if fees become past due. You are responsible for all applicable taxes (excluding taxes on our net income), and we will charge tax if we are required to do so by applicable law.
1.4. Account Registration. In order to use the Application or Services, you will be you will be required to register Authorized Users for an account (the “Account”) for the Application and Services with unique e-mail addresses and passwords to enable Authorized Users to access and use the Services pursuant to this Agreement. Each e-mail address and password may only be used to access the Services during one (1) concurrent login session. You will ensure that each e-mail address and password issued to an Authorized User will be used only by that Authorized User. You are responsible for maintaining the confidentiality of all Authorized Users’ passwords and are solely responsible for all activities that occur under these accounts. You agree: (a) not to allow a third party to use your Accounts at any time; and (b) to notify Ametra promptly of any actual or suspected unauthorized use of an account or any other breach or suspected breach of this Agreement. Ametra reserves the right to terminate any accounts that Ametra reasonably determines may have been used by an unauthorized third party. Authorized User accounts and their associated e-mail addresses and passwords cannot be shared or used by more than one individual Authorized User, but an account may be reassigned from time to time to a new Authorized User who is replacing a former Authorized User who has terminated employment or otherwise changed job status or function and no longer uses the Application and Services. You are solely responsible for all access to and use of the Application and Services by its Authorized Users and all access to and use of the Application and Services through any Authorized User’s account. You are responsible for the confidentiality and use of your Login Information and agree not to transfer or disclose your Login Information to any third party other than an individual with express authority to act on your behalf. You are solely responsible for any activities occurring under your Account. If you suspect any unauthorized use of your Account, you agree to notify us immediately at legal@ametra.ai or through the “Customer Support” links in the Application. We reserve the right to discontinue offering the Application and Services, including by terminating your Account, at any time pursuant to these Terms.
1.5. Documentation License. Subject to the terms and conditions of this Agreement, We hereby grant to You a non-exclusive, non-transferable, non-sublicenseable right and license during the Term to make copies of the Our standard user manuals and/or related documentation which are generally made available (the “Documentation”), solely for Your internal use. You agree not to granted to modify, adapt, translate, publicly display, publish, create derivative works or distribute Documentation.
1.6. Open Source. We may include open-source software in the Application and in the Services, the licenses for which can be found on Ametra Website.
1.7. Online Customer Support. If you have a question about our products, a previous order, or other inquiry, you can use our online customer support features that may include online forms and internet messaging features to contact us. We use a third-party service provider to provide the online messaging feature. To better serve you, our customer service agents leverage our service provider’s artificial intelligence-powered online messaging to promptly assist with your questions or concerns. By using our online customer support features you consent to your information being collected, used, and processed by our service provider on our behalf. We will handle any personal information we receive through the chat feature, such as chat transcripts, account or order information, or your contact information, in accordance with our Privacy Policy.
1.8. General Knowledge. Notwithstanding anything to the contrary in this Agreement, Ametra will not be prohibited or enjoined at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the products or services under this Agreement.
1.9. Contact Ametra. If you have questions or comments about this Agreement, you may email us at legal@ametra.ai
2. OWNERSHIP.
2.1. Customer Properties. As between the Parties, all right, title, and interest in and to the Customer Content are and will remain the sole and exclusive property of you, including all intellectual property rights therein.
2.2. Ametra Properties. You acknowledge that Ametra and its licensors own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights (“Intellectual Property Rights”) in and to the Application (including all components thereof) and the Services, and Ametra expressly reserves all rights not expressly granted You in this Agreement. You shall not engage in any act or omission that would impair Ametra’s and/or its licensors’ Intellectual Property Rights in the Application, the Services and any other materials, information, processes or subject matter proprietary to Ametra.
2.3. Customer Feedback. You hereby grant Ametra a royalty-free, worldwide, transferable, sublicenseable, irrevocable, fully-paid, perpetual license to use or incorporate into the Proprietary Items, any suggestions, enhancement requests, recommendations, or other feedback provided by you, Customer or Authorized Users.
3. USAGE TERMS AND RESTRICTIONS.
3.1. Permitted Uses. You are authorized to install and use the Application and visit and access the Services for the sole purpose of viewing and using the Services on your computer or device. If you fail to abide by these Terms, we reserve the right to terminate your access the Application and Services and we may pursue legal actions including to protect our intellectual property rights or the intellectual property rights of others.
3.2. Customer Content. You hereby grants Ametra a fully paid, royalty-free, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license during the Term to use, reproduce, modify, adapt, publicly perform, and display in the Application and Services Customer Content that you may create, upload, post, transmit, store, or otherwise makes available in the Application or Service (the “Customer Content”) for the purposes of operating, providing, enhancing, improving, supporting, and maintaining the Services for you or Authorized Uses.
You agree that Ametra is not required to provide further notice to you, attribution, or payment to you or any other person or entity, except as otherwise expressly provided herein. You agree that this license provides Ametra with the right to use User Content to provide, improve, and develop the Application and Services including Ametra’s use of Artificial Intelligence Technologies. Artificial Intelligence (“AI”) Technologies are a set of technologies that enable computers to simulate human learning, problem-solving and decision making, including by use of machine learning, and any related AI models, large language models, data sets (including training data sets), algorithms, any technology that can create original text, images, video and other content (known as Generative AI) or automated decision making technology.
You acknowledge that all Customer Content is your sole responsibility. You, and not Ametra, are entirely responsible for all Customer Content that you create, upload, post, transmit, store, or otherwise makes available (collectively, “Make Available”) through the Application and Services, including the back-up of such Customer Content. You agree not to Make Available through the Application and Services any Personal Data, and Ametra shall have no liability with respect to any Personal Data. For the avoidance of doubt, all your obligations in this Agreement with respect to Personal Data, including obligations to obtain consent and compliance with all applicable laws, shall apply to any Personal Data that you or any Authorized Users may Make Available through the Application or Services regardless.
When you Submit User Content, you represent and warrant to us that (i) you own or have the necessary rights to use and share the User Content, (ii) the posting of the User Content does not violate any rights of any person or entity, and (iii) you have no agreement with or obligations to any third party that would prohibit your use of the Application or Services in the manner so used.
You agree that Ametra may, in our sole discretion, remove User Content at any time.
3.3. No Inappropriate User Content. You agree not to submit any materials that are vulgar, profane, abusive, hateful, or which use sexually explicit language, epithets or slurs, text or images in poor taste, inflammatory attacks of a personal, sexual, racial, or religious nature, or expressions of bigotry, racism, discrimination or hate, or that harms, or is inappropriate for minors to view.
3.4. Limits on User Content. You agree not to Submit any User Content that is harassing, defamatory, threatening, disparaging, inflammatory, false, misleading, deceptive, fraudulent, inaccurate, or unfair, contains gross exaggeration or unsubstantiated claims, violates the privacy rights or right of publicity of any third party, is harmful or offensive to any individual or community, contains any actionable statement, tends to mislead or reflect unfairly on any other person, business or entity, or Submit User Content that contains copyrighted Content without the express permission of the owner of the copyrights in the Content.
3.5. User Content Disclaimer. The User Content represents the view of the user and may not represent the views of Ametra. Ametra does not endorse the User Content. Ametra cannot confirm the accuracy or credibility of any User Content, and we will not be liable to you or any other third party for any actions you may take as a result of reading or viewing User Content.
3.6. Content-Sharing Features. The Application and Services may include a content-sharing features (the “Content-Sharing Services”) whereby content-creating users (the “Authors”) can create and share certain User Content with other users subject to the sharing permission set by the Creator in the Platform. By sharing User Content, you represent and warrant that you have all necessary permission to share the Content in its form. If the User Content is a photograph, you represent that all personally identifiable information has been removed from the photograph. At times, entering project information into the Application or Services may require sharing the Personal Information of third parties, such as clients. You agree that only such Personal Information as is necessary has been uploaded to the Services and Platform, and that you have permission in accordance with applicable laws from the subject to share their information with whoever has permission to see such Personal Information inside the Services. If an Author shares User Content with you, you agree that Author retains all ownership rights in the shared content, and you may not use such shared content for any purposes other than in connection with the Content-Sharing Service or other Services offered by Ametra or its authorized partners.
3.7. Protection of Intellectual Property Rights. You shall not violate the Intellectual Property Rights of any person or any entity when using the Application, Services, the Content or in providing User Content.
3.8. Prohibited Uses. You will not use the Application, Services or Documentation for any purposes beyond the scope of the licenses granted in this Agreement. Without limiting the generality of the foregoing, You will not (i) authorize or permit use of the Application, Services or Documentation by persons other than Authorized Users; (ii) distribute any copies of the Application, the Services or the Documentation; (iii) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber Your rights under the licenses granted in Sections 1.1 and 1.2; (iv) modify or create any derivative works of the Application (or any component thereof) , Services or Documentation, except with the prior written consent of Ametra; or (v) use any robot, spider, or other automatic device or manual process to scrape, monitor, mine, retrieve, or copy the Application, Services or their Content without our prior written permission; or (vi) link or frame to any pages of the Application, Services or any Content except as may be specifically authorized by Ametra in advance and in writing; or (vii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Application or Services is compiled or interpreted, and You hereby acknowledge that nothing in this Agreement shall be construed to grant You any right to obtain or use such source code; (vii) use or incorporate all or a portion of the Application, Services or the Content into any large language model, machine learning model, algorithmic software program, data set, AI Model or generative AI tool, including, but not limited to, training or using the Content in developing or operating any AI Technologies, or for automated decision making.
3.9. Protection of Personal Information. You will not disclose any Personal Information or image of another individual without that person’s prior written consent. You will not post any Personal Information or likeness of a minor.
3.10. No Harmful Behavior. You will not submit inaccurate information via the Application, Services, commit fraud or falsify information in connection with your use of the Application or Services, or act maliciously against the business interests or reputation of Ametra, its employees or its customers. You will not interfere with another person’s or entity’s use or enjoyment of the Application or Services. You will not use the Application or Services or Submit User Content to promote a cause or movement, whether political, religious, or otherwise, or to use the Application or Services for chain letters or texts, junk mail, spamming, or use of distribution lists. You will not act maliciously against the business interests or reputation of Ametra.
3.11. No Impersonations. You may not impersonate or attempt to impersonate another user or person when using the Application, Services or their Content or when making a purchase of the Application or Services.
3.12. No Commercialization. You shall not advertise, promote or offer to trade any goods or services using the Application, Services or Content or use the Application, Services or Content to create a competing website, software application, service or business.
3.13. No Assignment. You will not sell or otherwise transfer your Account.
3.14. No Interference with the Operation of the Services. You will not engage in activities designed to disable, damage, change the functionality or appearance of the Application or Services, to render the Application or Services inoperable or to make it more difficult to use. You will not use the Application or Services to access or attempt to access our network or infrastructure, accounts of other users, or unauthorized access to the Application or Services.
3.15. No Hacking. You will not attempt to gain unauthorized access to other computer systems from or through the Application or Services; not to upload, post, or transmit malware, viruses, Trojan horses, worms, time bombs, cancelbots, ransomware, or other harmful, disruptive, or destructive files or computer programming routines; and not to disrupt, interfere with, or otherwise harm or violate the security or functionality of the Application or Services, system resources, accounts, passwords, servers, or networks connected to or accessible through the Application or Services.
3.16. Third-Party Restrictions. You shall undertake all measures necessary to ensure that Your use of the Application, the Services and the Documentation complies in all respects with any contractual or other legally binding obligations of Ametra to any third party, provided that We have notified You with respect to any such obligations. You shall not enter into any contractual relationship or other legally binding obligation with any third party which shall have the purpose or effect of encumbering the use by Ametra of the Application, the Services or the Documentation.
3.17. Compliance with Laws. You shall undertake all measures necessary to ensure that Your use of the Application, the Services and the Documentation complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the Parties, the Application, the Services or the Documentation. You acknowledge that Ametra makes no representation or warranty that the Application or the Services may be exported without appropriate licenses or permits under applicable law, or that any such license or permit has been, will be or can be obtained.
3.18. Proprietary Notices. You shall duplicate all proprietary notices and legends of Ametra and its suppliers or licensors upon any and all copies of the Application, Services and Documentation made by You. You shall not remove, alter or obscure any such proprietary notice or legend.
3.19. Location-Based Services. Some features of the Application and Services may require that location functionality be enabled on the relevant device in order to work properly. You acknowledge and agree that if location permissions and functionalities are not enabled on the device with which you access the Application and Services, the Application and Services may not work appropriately or at all. We will use any location information we receive from you in accordance with our Privacy Policy. By enabling the Location-based services you are bound by applicable location sharing and privacy policies of Apple’s and/or Google’s Terms of Service.
3.20. Third-Party Sites. The Application and Services may contain links to third party applications or websites we do not operate, control, or maintain (“Third-Party Sites”). We do not endorse any Third-Party Sites, and we make no representation or warranty in any respect regarding the Third-Party websites. Any links to Third-Party Sites on the Services are provided solely for your convenience. If you do access any Third-Party Sites, you do so at your own risk and waive any and all claims against us regarding the Third-Party Sites or our links thereto.
3.21. No guarantees for color information. The colors and paint information provided in the Application and Services are intended for inspiration purposes only. While we strive to provide accurate and helpful suggestions, final color outcomes may vary significantly due to individual interpretations, device displays, or environmental factors. Ametra disclaims any responsibility for discrepancies, inaccuracies, or variations in color representation. Users are advised to independently verify and test colors in their specific context before making final decisions.
3.22. Performance and Usage Data. We may use cookies, pixels, session replay and other tracking technologies, including third-party tracking technologies, or (collectively, “Adtech”) on the Application and Services. We use Adtech to collect and perform data analytics, to record how you interact with the Application, Services and Content, including where you direct your mouse, the information you type, and other user related activities for the purpose of improving the Application and Services. By visiting and using the Services and installing and accessing the Application, you are consenting to our use of Pixel and understand and agree that we may share personal information about you that we collect from the use of Adtech with our Adtech partners. For more information about how we use Adtech, please see our Privacy Policy.
3.23. Privacy Policy. We may collect certain Personal Information when you use our Application and Services which we will handle in accordance with our Privacy Policy.
3.24. Compliance Records. You shall create and maintain complete and accurate records of all copies of the Application, and/or Services, and/or Documentation made by or on Your behalf, including the date such copies are made and the locations of Authorized Systems where such copies are installed. You shall promptly provide a copy of such records upon request by Ametra. Throughout the License Term, Ametra will have the right, at its own expense, upon reasonable prior notice, periodically to inspect and audit Your use of the Application. Services and Documentation for purposes of determining Your compliance with the terms and conditions herein. You agree to cooperate with Ametra in the performance of any such audit, and shall provide to Ametra such access to Your relevant records, data, information, personnel and/or facilities as Ametra may reasonably request for such limited purposes.
4. REPRESENTATIONS AND WARRANTIES.
4.1. Mutual Warranties. You and Ametra (Each Party) represents and warrants that (i) it has full power and authority to enter into and perform this Agreement and (ii) the execution of this Agreement by a Party will not violate, or conflict in any way with, the terms and conditions of any other agreement previously entered into by such Party. Each Party will comply with all applicable laws and regulations, including all laws related to privacy of Personal Data.
4.2. Ametra Warranties. Ametra hereby warrants, for Your benefit only, that the Application and the Services will conform in all material respects to the Documentation for a period of thirty (30) days from the Effective Date (as defined below), provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (i) any use of the Application or the Services other than in accordance with the Documentation, (ii) modification of the Application or the Services by You or any third party or (iii) any combination of the Application or the Services with software, hardware or other technology not provided by Ametra under this Agreement. Ametra further warrants that the media on which the Application or the Services is delivered to You will be free of material defects for a period of thirty (30) days from the Effective Date. Ametra will replace such media, free of charge to You, provided You promptly notify Ametra of such defect, return the media to Ametra, and pay shipping and handling costs associated with such return and replacement. In the event Ametra breaches any of the foregoing warranties and fails to remedy such breach within a reasonable time after You notify Ametra thereof, You may notify Apple of such breach, and Apple will refund the purchase price for the Application to You. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application.
4.3. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 4 OF THIS AGREEMENT, THE APPLICATION, THE SERVICES AND ANY OTHER MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY AMETRA ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND AMETRA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY AMETRA ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. AMETRA DOES NOT WARRANT THAT THE APPLICATION OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. YOU ACKNOWLEDGE THAT AMETRA’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR YOUR BENEFIT ONLY.
5. LIMITATION OF LIABILITY. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR CUMULATIVE LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ONE HUNDRED US DOLLARS (US$100.00). THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT AMETRA MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
6. No Duty to Correct Errors. Except as expressly set forth in this Agreement or required by applicable law, You acknowledge and agree that We have no obligation under this Agreement to correct any defects or errors in the Application or the Services furnished to You under this Agreement, regardless of whether You inform Us of such defects or errors or We otherwise become aware of, such defects or errors. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application or the Services.
7. CONFIDENTIALITY.
7.1. Ownership of Confidential Information. “Confidential Information” means any material or information relating to a party’s research, development, products, product plans, services, clients, client lists, markets, software, developments, inventions, processes, formulas, technologies, designs, drawings, marketing, finances, or other business information or trade secrets that such party treats as proprietary or confidential. Without limiting the foregoing, the software and any databases (including any data models, structures, non-Licensee specific data and aggregated statistical data contained therein) of Ametra shall constitute Confidential Information of Ametra. You acknowledge that during the performance of this Agreement, You will have access to certain of Ametra’s Confidential Information or Confidential Information of third parties that We are required to maintain as confidential. You agree that all items of Confidential Information are proprietary to Ametra or such third party, as applicable, and shall remain the sole property of Ametra or such third party.
7.2. Mutual Confidentiality Obligations. You agree as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) to not reproduce the Confidential Information and hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) to not create any derivative work from Confidential Information disclosed to You by Ametra; (iv) to restrict access to the Confidential Information to such of Your personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all of Our Confidential Information in Your possession upon termination or expiration of this Agreement.
7.3. Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 7.1 and 7.2 shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by Us without restriction. Notwithstanding the foregoing, You may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that You shall first have given written notice to Us and made a reasonable effort to obtain a protective order; or (y) to establish Your rights under this Agreement, including to make such court filings as You may be required to do.
8. INDEMNIFICATION.
8.1. Ametra shall defend, indemnify, and hold You harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any claim by a third party that any use of, or access to, the Application or Services by You as expressly authorized under this Agreement infringes or misappropriates, as applicable, any U.S. patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States, provided that You give Ametra (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Ametra may reasonably request, at Ametra’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Ametra shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Application or Services with products, services, information, materials, technologies, business methods or processes not furnished by Ametra; (2) modifications to the Application or Services, which modifications are not made by Ametra; (3) use of the Application or Services to analyze and/or audit any third party software; (4) failure to use updates to the Application or Services provided by Ametra; or (5) use of the Application or Services except in accordance with any applicable user documentation or specifications (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Your Indemnity Responsibilities”).
8.2. Upon the occurrence of any claim for which indemnity is or may be due under this Section 8, or in the event that Ametra believes that such a claim is likely, Ametra may, at its option (i) appropriately modify the Application or Services so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this Agreement on written notice to You and refund to You any unused license fees under the then current License Term(s). The obligations set forth in this Section 10 shall constitute Ametra’s entire liability and Your sole remedy for any actual or alleged infringement or misappropriation.
8.3. You shall indemnify, hold harmless, and, at Ametra’s option, defend Ametra from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Your Indemnity Responsibilities. Ametra agrees to give You (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as You may reasonably request, at Your expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, You shall not settle any third-party claim against Ametra unless such settlement completely and forever releases Ametra with respect thereto or unless Ametra provides its prior written consent to such settlement. In any action for which You provide defense on behalf of Ametra, Ametra may participate in such defense at its own expense by counsel of its choice.
8.4. You agree and acknowledge that in the event of any third party claim that the Application or Your possession and use of that Application or Services infringes such third party’s intellectual property rights, either You or Ametra, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim solely in accordance with this Section 8.
9. SPECIAL TERMS APPLICABLE FOR APPS DISTRIBUTED THROUGH THE APPLE APP STORE OR GOOGLE PLAY STORE
9.1. Acknowledgement. Our Application, Services and certain Content, including may be available through the Apple App Store or Google Play (collectively the “Apps”). You understand that these Terms are between you and Ametra, and not with Apple Inc. or Google, Inc. (each an “App Distributor”). Ametra, not the App Distributor, is solely responsible for the Application, Services and their Content. In the event that the rules and restrictions in these Terms related to your use of the Application or Services conflict with the terms and conditions provided by the applicable App Distributor, the App Distributor’s terms shall control.
9.2. Scope of License. The licenses granted to you for the Application and the Services in these Terms are solely for use by you on a device that utilizes the Apple iOS or Android operating system, in accordance with the applicable App Distributor’s terms and conditions.
9.3. Maintenance and Support. Ametra is solely responsible for providing any Services maintenance and you agree that the App Distributor has no obligation to furnish any Services maintenance and support.
9.4. Warranty. Ametra is solely responsible for any Application or Service product warranties, whether express or implied by law, to the extent not disclaimed in these Terms. In the event the Application or Services fails to conform to any applicable warranty, you may notify the App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the Application or Services. To the maximum extent permitted by applicable law, the App Distributor has no other warranty obligation with respect to the Apps, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be Ametra’s sole responsibility.
9.5. Product Claims. You and Ametra acknowledge that Ametra, not an App Distributor, is responsible for addressing any claims that you or any third party have relating to the Application or Services, including any (1) product liability claims; (2) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (3) any claim arising under consumer protection, privacy, or similar legislation.
9.6. Intellectual Property Rights. Ametra, not the App Distributor, will be solely responsible for the investigation, defense, settlement, and discharge of any third-party intellectual property infringement claims related to the use of the Application or Services and you must comply with applicable App Distributor terms when using the Services.
9.7. Third-Party Beneficiary. You agree that the App Distributors, and their subsidiaries, are third party beneficiaries to these Terms as applicable to the Application and Services, and that, upon your acceptance of these Terms, each App Distributor will have the right (and will be deemed to have accepted the right) to enforce these Terms (as applicable) against you as a third-party beneficiary thereof.
10. OTHER PROVISIONS
10.1. Publicity. You authorizes Ametra to use Your Customer’s name in any routine list of Ametra Customers and as a reference. Each Party, with prior written consent of the other Party, may publicize the Services to be offered under this Agreement in its marketing and advertising material, and may reproduce the Marks of the other Party in connection therewith; provided, however, that such prior written consent shall not be required for either Party to give the other’s name and disclose this Agreement in connection with any filings or press releases which it deems in its good faith discretion to be necessary under federal or state securities laws.
10.2. Notice. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the first business day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.
10.3. Assignment. You may not, without Ametra’s prior written consent, assign, delegate, pledge, or otherwise transfer this Agreement or Order, or any of its rights or obligations under this Agreement or any Order to any third party, whether voluntarily or by operation of law. Any attempted assignment in violation of the foregoing will be null and void. Ametra may assign, transfer, or sub-contract any our rights or obligations under these Terms to any third party at our discretion.
10.4. Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the state of Delaware excluding choice of law; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws shall not apply and the United Nations Convention on Contracts for the International Sale of Goods is also excluded and does not apply to this Agreement. Each Party irrevocably agrees that any legal action, suit or proceeding brought by it that in any way arises out of the Agreement must be litigated exclusively in a Delaware court. Notwithstanding the foregoing, in the event of any breach or apparent breach by either party of the provisions of this Agreement, the other party shall be entitled, in addition to all other remedies, to seek an injunction, whether interlocutory or preliminary, and to seek any other equitable relief, before any court of competent jurisdiction.
10.5. Waiver of Jury Trial & Class Actions. Both Parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved through Arbitration settlement procedure per terms of the Section 10.7. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you waive all rights to a jury trial, instead electing that the dispute be resolved by a judge. All claims and disputes within the scope of this section must be arbitrated or litigated on an individual basis and not on a class basis and claims of more than one user cannot be arbitrated or litigated jointly or consolidated with those of any other user.
10.6. Good Faith Negotiations. We always prefer to resolve Disputes by negotiating in good faith. Either party may attempt to resolve a Dispute through good faith negotiations. In the event of a Dispute, each party shall first send written notice of the Dispute, which includes your name, address, email address, phone number and a description of the relief you are seeking (“Dispute Notice”). Within 30 days after delivery of the Dispute Notice (unless mutually agreed by the parties), the parties shall meet virtually at a mutually acceptable date and time. At no point during this time shall either party initiate litigation or arbitration, except for Disputes subject to injunctive or other equitable relief. If the Parties cannot resolve the Dispute within 60 days of the Dispute Notice, either party may pursue individual arbitration proceedings as described below. Any Dispute which cannot be resolved through good faith negotiations, must be pursued through binding arbitration as described in the Section 10.7.
10.7. Arbitration Procedure. Any disputes, disagreements and (or) claims arising or able to arise out of the present Agreement or in connection herewith shall be settled by the Parties by means of negotiations in an Arbitration settlement procedure. The term for the examination of the written claim shall not exceed 20 (twenty) calendar days after receipt by a Party of the other Party’s written request for negotiations. If no settlement is achieved between the Parties, then any dispute, controversy or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the rules of Arbitration of the International Chamber of Commerce in force at the time of the relevant dispute (the “Rules”). The number of arbitrators shall be one, appointed in agreement by the Parties or, if such agreement is not reached within 20 (twenty) Business Days from notification of the intention to commence arbitration proceedings from one Party to the other Party, pursuant to the Rules. The place of arbitration shall be in Delaware, language of the proceedings, documentation and award shall be English.
10.8. Force Majeure. Except with respect to Your payment obligations, neither Party shall be liable for, nor shall either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, pandemic, civil unrest, unavailability of supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care.
10.9. Export Laws and Use Outside of the United States. You represent and warrant that (i) you, Customer or Authorized Users are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you. Customer or Authorized Users are not listed on any U.S. Government list of prohibited or restricted parties. You, Customer and Authorized Users shall comply with all applicable export related laws and regulations. You, Customer and Authorized Users shall not export or re-export directly or indirectly (including via remote access) any Proprietary Items (or parts thereof) to any applicable jurisdiction or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority. You will defend, indemnify and hold harmless Ametra from and against any violation of such laws or regulations by You, Customer or any of your Authorized Users, agents, officers, directors, or employees.
10.10. Relationship. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint venturers or agents.
10.11. Modification and Waiver. Ametra reserves the right to modify the Terms of the Agreement (the “Terms”) at any time, with such changes becoming effective when we post the modified Terms to the Services. Each time you use the Services or the Application, the then-current version of the Terms will apply. If you a) visit or use the Services and/or b) install or use the Application after a modification of these Terms, you agree to be bound by the Terms as modified.
10.12. Order of Precedence. In the event of a conflict between the provisions of the Agreement and the terms of any Order, unless a document executed by both Parties expressly references a specific section in a controlling document, the Parties agree to the following order of precedence: (1) the terms of this Agreement, then (2) any Orders.
10.13. Interpretation. The Section headings of this Agreement are for convenience and will not be used to interpret this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
10.14. Severability. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such unenforceable portion of the provision will be deemed severed from this Agreement, (b) the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and (c) this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.
10.15. Entire Understanding. This Agreement, which includes and incorporates related Schedules, Orders, and SOWs, states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement.
10.16. English Language. English shall be the language of the Agreement and all notices, communications and other correspondence between the Parties and shall govern and control the interpretation of this Agreement. In the event that this Agreement or any documentation is translated, in all cases the English version shall govern.
