This Agreement sets out the general terms and conditions under which Amorphous Data agrees to provide, and Customer and End User agree to receive and use, the Services. By accessing or using the Services, Customer and End User acknowledge that they have read, understand, and agree to be bound by this Agreement and Amorphous Data’s Privacy Notice. Those who do not agree with the terms of this Agreement should not access or use the Services.
1.1 Authority. The individual agreeing to this Agreement represents to Amorphous Data that they have the authority to bind Customer and any Affiliates to this Agreement.
1.2 End Users. To access or use the Services, an End User must sign up for an End User Account by registering for an account and providing their full legal name, a valid email address, and any other information required by Amorphous Data to complete the registration process.
2.1 Accessing the Services. Access to the Services may be procured via an Order Form entered into by and between Customer and Amorphous Data, or, in the case of the free tier, a valid email address and name.
2.2 Acceptable Use. In addition to complying with the other terms set forth in this Agreement, Customer and End User agree to (i) use the Services in compliance with all applicable laws and regulations; and (ii) comply with the terms of Amorphous Data’s End User Conduct and Content Policy.
2.3 Export Compliance. Customer and End User may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Customer represents that neither it nor any of its End Users are named on any U.S. government denied-party list. Customer shall not permit any End User to access or use the Services in a U.S. embargoed country or region or in violation of any U.S. export law or regulation.
2.4 Support and Maintenance. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Amorphous Data or by third party providers, or because of other causes beyond Amorphous Data’s reasonable control, but Amorphous Data shall use reasonable efforts to provide advance written notice of any scheduled service disruption. Amorphous Data may access Customer Accounts or End User Accounts in order to respond to and resolve support requests.
3.1 Protection of Confidential Information. The Receiving Party agrees (i) to protect the confidentiality of Confidential Information using at least the same degree of care and discretion as it uses with its own Confidential Information, but in no event less than a reasonable degree of care; and (ii) not to disclose (except in performance of the Services or as otherwise permitted by this Agreement) to any third person any such Confidential Information without the express prior written consent of the Disclosing Party. The Receiving Party may disclose Confidential Information to its Representatives on a strict need to know basis and only to those who are obligated to maintain the confidentiality of such Confidential Information under terms that are at least as protective as the terms set forth herein.
3.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent legally required in connection with any legal or regulatory proceeding, or where Amorphous Data is the Receiving Party, in accordance with Amorphous Data’s Law Enforcement Data Request Guidelines; provided, however, that in such event the Receiving Party will, when permitted by law, provide advance notice to the Disclosing Party.
3.3 Equitable Relief. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party may be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
4.1 Data Protection. Amorphous Data shall implement and maintain technical, organizational, and physical measures designed to protect the confidentiality, integrity and availability of Customer Data in Amorphous Data’s possession, custody or control. The Parties agree to the terms of Amorphous Data’s Data Processing Addendum which is incorporated into this Agreement.
4.2 Usage Data. Notwithstanding anything to the contrary, Amorphous Data shall have the right where permitted by law to collect, aggregate and analyze anonymized or de-identified data and other information relating to Customer and End Users’ use of the Services, including, without limitation, information concerning Customer Data and data derived therefrom (collectively, “Usage Data”), and Amorphous Data will be free during and after the Subscription Term to use Usage Data to analyze, support, develop, operate and improve the Services and other Amorphous Data offerings and for other lawful business purposes, including without limitation, to generate industry benchmarks or best practice guidance, recommendations, or similar reports.
4.3 Feedback. By submitting any feedback or suggestions regarding the Services, or sharing such feedback with any Representative of Amorphous Data, Customer grants to Amorphous Data an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use such feedback or suggestion(s) for any purpose and without any obligation or compensation to Customer, End User, or any other Customer Representative. No rights or licenses are granted except as expressly set forth herein.
5.1 Of Amorphous Data. The Services are made available on a limited access basis, and no ownership right is conveyed to Customers or End Users. Amorphous Data owns and retains all intellectual property rights in and to (i) the Services (excluding only the Customer Data) and all trademarks, logos and service marks utilized by Amorphous Data in connection with the delivery of the Services; (ii) all improvements, enhancements or modifications of the Services; and (iii) any Software, applications, inventions or other technology developed in connection with supporting the Services.
5.2 Of Customer. As between Customer and Amorphous Data, Customer shall own all intellectual property rights in and to the Customer Data. Customer grants to Amorphous Data on behalf of itself and its End Users a worldwide, non-sublicensable, non-transferrable (except to a permitted assignee of Amorphous Data), non-exclusive, limited license to access, use, copy, reproduce, Process, adapt, distribute, publish, transmit, export and display the Customer Data as reasonably necessary (i) to provide, maintain and update the Services; (ii) to prevent or address service, security, support and technical issues; and (iii) as expressly permitted by this Agreement or by Customer in writing.
6.1 Amorphous Data Warranties. Amorphous Data warrants that during an applicable Subscription Term, the Services will perform materially in accordance with the Documentation. Amorphous Data’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Amorphous Data to use commercially reasonable efforts to correct the reported non-conformity. The warranties herein do not apply if the error was caused by Customer or End User’s misuse or unauthorized modification of (i) the Services or (ii) Third Party Services.
6.2 Customer Warranties. Customer warrants that it is entitled to transfer the Customer Data to Amorphous Data so that Amorphous Data and its authorized third party service providers may lawfully use, Process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. Customer agrees to comply with all applicable laws in its use of the Services.
6.3 Mutual Warranties. Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
6.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND AMORPHOUS DATA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. AMORPHOUS DATA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, VIRUS-FREE OR FREE FROM HARMFUL COMPONENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. AMORPHOUS DATA DOES NOT WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. AMORPHOUS DATA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD PARTY PLATFORMS, THIRD PARTY MESSAGING APPLICATIONS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AMORPHOUS DATA.
7.1 Exclusion Of Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA , BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
7.2 Limitation Of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AMORPHOOUS DATA’S AGGREGATE LIABILITY TO CUSTOMER, ITS AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR PROFESSIONAL SERVICES FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND PROFESSIONAL SERVICES FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF Amorphous Data WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. Amorphous Data HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR THE PROFESSIONAL SERVICES PROVIDED FOR IN THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION 10.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES ARISING FROM (1) THE INDEMNIFICATION OBLIGATIONS HEREIN, OR (2) CUSTOMER’S NON-PAYMENT OF UNDISPUTED FEES DUE AND PAYABLE.
7.3 Limitation of Liability in the Aggregate. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY CUSTOMER AND ITS AFFILIATES, AND SHALL NOT BE CUMULATIVE.
7.4 Jurisdiction-specific Exclusions. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for a Party’s own fraud, willful injury to the person or property of another, or violation of law which means that some of the above limitations may not apply to Customer. IN THESE JURISDICTIONS, AMORPHOUS DATA’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
7.5 Enforceable Against Amorphous Data. Any claims or damages that Customer may have against Amorphous Data shall only be enforceable against Amorphous DataApp, Inc. and not any other entity, nor any officers, directors or Representatives of Amorphous Data or any other entity.
7.6 The provisions of this Section 10 allocate the risk between the Parties under this Agreement and the Parties have relied on these limitations in determining whether to enter into this Agreement.
The Services allow for various Third Party Services to be used in connection with the Services. Customer’s use of such Third Party Services, and any exchange of Customer Data between Customer and the provider of such Third Party Service is solely between Customer and the Third Party Service provider. Amorphous Data does not warrant or support any Third Party Service or other non-Amorphous Data product or service, regardless of whether such Third Party Service is promoted or made available through the Services or is designated by Amorphous Data as “certified” or “working with” the Services. Customer acknowledges that providers of such Third Party Services may have access to Customer Data in connection with the interoperation and support of such Third Party Service with the Services and that, as between Customer and Amorphous Data, Customer is solely responsible for reviewing and complying with such Third Party Service provider’s terms of use, practices and policies. To the extent Customer authorizes the access, transmission or Processing of Customer Data through a Third Party Service, Amorphous Data shall not be responsible for any disclosure, modification, deletion or other Processing of such Customer Data by the Third Party Service provider or for any act or omission on the part of such Third Party Service provider.
9.1 Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of Massachusetts without regard to its conflict of laws provisions, and Amorphous Data, Customer and End User consent to the personal jurisdiction and venue of the state or federal courts located in Boston, Massachusetts.
9.2 Trial Subscriptions. Amorphous Data may, at its option, offer new customers a limited free trial of the Services, subject to this Agreement. Notwithstanding anything to the contrary herein, Amorphous Data shall have the right to terminate a Customer free trial at any time and for any reason.
9.3 Entire Agreement. This Agreement, including all attachments, policies, exhibits, addendums, and any Order Form(s) related hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the Order Form shall prevail. No terms or conditions stated in any Customer purchase order or similar documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be considered null and void.
9.4 Updating this Agreement. Amorphous Data reserves the right to update or modify this Agreement from time to time as its business evolves by posting an updated version of this Agreement on its website. If, in Amorphous Data’s sole discretion, it believes that the modifications being made are material, Amorphous Data will notify Customer and End User prior to the change taking effect. By continuing to utilize the Services after the effective date of any update to this Agreement, Customer and End User will be deemed to have accepted such update.
10.1 “Account” means a Customer Account or End User Account.
10.2 “Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such Party, whether through the ownership of voting securities, by contract or otherwise.
10.3 “Agreement” means this Software-as-a-Service (SaaS) Agreement, consisting of the terms and conditions stated herein as well as all Order Forms, policies, addenda, exhibits, attachments and amendments (if any).
10.4 “Confidential Information” means all information provided or made available by the Disclosing Party to the Receiving Party in connection with this Agreement that is either identified as, or should reasonably be understood by the Receiving Party to be, proprietary or confidential, including, but it not limited to, non-public information regarding features, functionality and performance of the Services, the terms of this Agreement, Customer Data, business plans, product plans, roadmaps, strategies, forecasts, projects and analyses, the results of any audit related to the Services (including but not limited to security audits), financial information and fee structures, business processes, methods and models, and technical Documentation, but does not include any information that the Receiving Party can demonstrate (i) was generally available to the public at the time of disclosure; (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without the use of any Confidential Information of the Disclosing Party.
10.5 “Customer” means the individual or entity represented by the individual(s) entering into this Agreement with Amorphous Data and includes Customer’s Affiliates.
10.6 “Customer Account” means the account or instance within the Services created on behalf of Customer by a representative of Customer that has administrative rights on the Customer Account to take certain actions and make certain changes on behalf of the Customer.
10.7 “Customer Data” means information submitted to or created in the Services by Customer or End User in connection with Customer or End User’s use of the Services. Customer Data does not include Usage Data, information about Amorphous Data’s business contacts within Customer’s organization, information about Account holders Processed for the Purpose of administering or operating such accounts or Amorphous Data’s marketing activities.
10.8 “Customer Parties” means Customer and its Affiliates, subsidiaries, officers.
10.9 “Customer Settings” means the portion of the Services which Customer can access by creating a Customer Account and where Customer can perform administrative functions, such as adding and deleting users.
10.10 “Disclosing Party” means a Party to this Agreement which may make Confidential Information available to the other Party.
10.11 “End User” means an individual accessing the Services through permissions granted in a Customer Account.
10.12 “End User Account” means the account or instance within the Services created by an End User who completes the registration process by providing their full legal name, a valid email address, and any other information requested.
10.13 “Amorphous Data Parties” means Amorphous Data and its Affiliates, subsidiaries, officers, employees and agents.
10.14 “including” means including, without limitation.
10.15 “Order Form” means the written instrument signed by both Parties to this Agreement which specifies the Fees associated with Customer’s use of the Services as well the Subscription Term.
10.16 “Parties” means Customer and Amorphous Data.
10.17 “Privacy Notice” means Amorphous Data’s policy found at https://www.amorphousdata.com/legal/privacy.
10.18 “Process” and inflections thereof refer to any operation or set of operations which is performed on Customer Data or on sets of Customer Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, and destruction
10.19 “Receiving Party” means a Party to this Agreement which may receive Confidential Information from the other Party.
10.20 “Representatives” means the employees, Affiliates, consultants, contractors, subcontractors, agents, or advisors of a Party.
10.21 “Services” means the software-as-a-service application and technical support services owned or operated by Amorphous Data, including mobile applications, Software, websites or other properties. “Services” excludes Third Party Services.
10.22 “Third Party Services” means the various third party applications and services which Amorphous Data makes available for use in connection with the Services.
10.23 “Usage Data” has the meaning given in Section 4.2.