This agreement allows you to use the Amplifier Products as provided below and describes the contractual relationship between you and Amplifier, Inc (“Amplifier”) arising from your use of Amplifier Products. The laws of California govern this agreement and any and all disputes related to this agreement shall be resolved in state or federal courts in Santa Clara County, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
YOU CAN USE AMPLIFIER PRODUCTS ONLY IF YOU READ, UNDERSTAND, AND ACCEPT THIS AGREEMENT AND HAVE THE AUTHORITY TO ACCEPT THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO DO SO.
You accept this agreement by signing this agreement, signing an applicable Order, or clicking “I agree” or similar terms when first downloading, installing, or using Amplifier Products, as applicable. You accept this agreement as to Amplifier’s website, https://www.amplifiersecurity.com/. If you accept this agreement, you can use Amplifier Products as provided by this agreement until the applicable Order or this agreement ends. Orders made through this agreement shall automatically renew for additional one-year periods unless otherwise provided in the applicable Order. Amplifier may change Amplifier Products and the features it offers at any time. Your continued use of Amplifier Products constitutes continuing agreement to these terms. Amplifier may change this agreement at any time by posting changes to this agreement at https://amplifiersecurity.com/tos
An Order is an ordering instrument that expressly incorporates this agreement by reference and is either accepted by you and Amplifier, or accepted by you and a reseller, distributor, or other partner that Amplifier has authorized to accept the Order with you. In the event of a conflict between this agreement and an Order, this agreement shall control unless the Order explicitly overrides a specific term or terms in this agreement.
An Order through a managed services provider (MSP), an original equipment manufacturing (OEM) partner, or similar partner shall be subject to such terms, conditions, and product configurations as may be applicable to Amplifier Products provided through the given partner.
Amplifier reserves all rights to all products, services, and information offered through Amplifier’s website, including all intellectual property rights related to Amplifier’s products and services except as Amplifier provides otherwise (“Amplifier Products”).
Amplifier may provide Amplifier Products to other customers and may provide software updates to Amplifier Products from time to time as provided in this agreement.
You can use Amplifier Products and any updates by accepting this agreement and obtaining the appropriate license, usage terms, and deployment option through an Order.
You can authorize other persons or organizations to use Amplifier Products on your behalf to the extent allowed by this agreement, but except as specifically provided in your Order you cannot process data using Amplifier Products for anyone else or let anyone else use your access to Amplifier Products to process data using Amplifier Products for anyone else other than you. You are responsible for all use related to your access to Amplifier Products. Your use of and access to Amplifier Products is not for resale, transfer, or other distribution except as specifically provided in your Order.
Amplifier may use free or open-source software in its products or services, including without limitation as described in Amplifier’s documentation available upon request. Such software may have additional terms and conditions, but those terms and conditions will not restrict your use of Amplifier’s products or services.
You must pay for all Amplifier Products as provided by this agreement and your Order. You will be charged fees for Amplifier Products based on the license, usage terms, and fee schedule described in your Order. Amplifier may change the fee schedule located on its website after providing notice on its website; changes to the fee schedule located on Amplifier’s website become effective as provided in the notice. You will be charged the fees that are in effect on the day of your use based on the applicable fee schedule.
You will not be charged fees for Amplifier Products that Amplifier designates as free on its website or provided at no cost for pilot use.
Amplifier will invoice you as provided by this agreement and your Order. On renewals, Amplifier will invoice you at the end of the applicable Order. You must pay an invoice within thirty (30) days of receiving the invoice or as otherwise provided by the applicable Order. Amplifier reserves the right to terminate your access to Amplifier Products for failure to pay any undisputed invoice.
All payments under this agreement shall be made without any deduction for any taxes, levies, imposts, duties, fines, interest, penalties, or other charges imposed by any government or other regulatory authority (“taxes”) except as to taxes based on the net income or property of you or Amplifier, or withholding taxes imposed in lieu thereof, and then only as required by law. Payments due shall be increased so that amounts received by Amplifier after the deduction of taxes imposed by any governmental authority will be equal to the amounts required under this agreement if no taxes were due. Amplifier may invoice you for sales, use, value added, goods, services, or similar taxes directly attributable to your receipt of Amplifier Products under this agreement. You shall indemnify Amplifier for the full amount of applicable taxes.
Amplifier will provide services as provided in your Order and subject to the services addendum described in your Order. Amplifier may change the services addendum located on its website after providing notice of the website of the change; changes to the services addendum become effective as provided in the notice. Your services will be subject to the services addendum in effect on the day Amplifier provides the given service.
Amplifier will provide support services for Amplifier Products as described in your Order. Amplifier will provide regular maintenance updates for Amplifier Products. Amplifier will provide support services and maintenance updates for the current version of Amplifier Products. Amplifier may provide support services and maintenance updates for previous versions of Amplifier Products on an exception basis to resolve critical security vulnerabilities, except that Amplifier will only provide maintenance updates for the current version of Amplifier Products, and Amplifier is only obligated to provide support services, and maintenance updates for paying customers.
Amplifier will provide Amplifier Products with at least 99% availability during any thirty-day period; Amplifier Products that Amplifier designates as free or provided at no cost for pilot use do not have a minimum availability requirement.
Availability calculations do not include scheduled and emergency maintenance, disruption due to your equipment or system failures, your failure to comply with this agreement, or any disruption outside of Amplifier’s reasonable control, including without limitation wide-spread Internet outages and acts of God.
If Amplifier does not provide Amplifier Products with the applicable minimum uptime, Amplifier will provide you with Amplifier Products Credits equal to 5% of your previous month’s usage from the month in which the disruption occurred if the disruption is between 98% and 99% uptime, 10% if between 97% and less than 98%, and 20% if less than 97%.
To request Amplifier Products Credit, you must submit a ticket to support with sufficient information and documentation to show the qualifying downtime. Amplifier will review the request and make determinations, within thirty days of receiving your request and in its complete discretion, of whether and the extent to which a qualifying downtime occurred. Amplifier will provide appropriate Amplifier Products Credits within thirty days of determining a qualifying downtime occurred.
You and Amplifier must follow all applicable laws, rules, regulations, contracts, and other legal requirements. You and Amplifier must comply with all applicable anti-bribery, anti-corruption, anti-money laundering, sanctions, and prohibited-country requirements, limitations, and rules. You must comply with all applicable import and export controls and obtain all licenses and approvals necessary to download, deploy, or use Amplifier Products.
You cannot download, deploy, or use Amplifier Products, or store information in or through Amplifier Products, in any way that violates any legal requirement or right of a third party. You cannot modify Amplifier Products, create derivative works from Amplifier Products, or reverse engineer any part of Amplifier Products unless agreed to by Amplifier in your Order.
Amplifier may suspend and/or terminate your use of Amplifier Products if Amplifier reasonably believes you are using Amplifier Products in violation of the license provided in this agreement and/or applicable law, disrupting Amplifier’s systems or other users, or otherwise using Amplifier Products inappropriately. Amplifier may implement changes to Amplifier Products as necessary and without prior notice or consent.
You and Amplifier own our respective data and confidential information. Your data and confidential information include data that you input into Amplifier Products or process with Amplifier Products. You are responsible for protecting your data from loss, alteration, and disclosure. You are responsible for protecting access to your data and for protecting any encryption keys or security credentials needed to access data encrypted by Amplifier Products.
Amplifier shall have the right to (and to retain third parties to) collect and analyze data and other information relating to the provision, use, and performance of various aspects of Amplifier Products and related systems and technologies, provided that Customer Data that is also personal information will only be used in connection with the purposes listed in this section, unless such personal information is aggregated or otherwise de-identified. Amplifier may (during and after the term hereof) (i) use such information and data to improve and enhance Amplifier Products and for other development, benchmarking, diagnostic, and corrective purposes in connection with Amplifier Products and Amplifier’s other offerings, and (ii) use third party service providers, contractors, and subcontractors (“Amplifier Providers”) to assist in providing, supporting, and improving Amplifier Products. Amplifier may share all such information and data with Amplifier Providers, who may store and use it solely to provide, support, and improve Amplifier Products. Amplifier shall be responsible for the compliance of Amplifier Providers with the provisions of this Agreement.
Amplifier receives and uses data as provided by Amplifier’s Privacy Policy, which is available at www.amplifiersecuirty.com/privacy and incorporated by reference into this agreement. Your data does not include Amplifier’s operational data as described in Amplifier’s Privacy Policy or Amplifier’s confidential information.
You and Amplifier must take reasonable steps to protect each other’s confidential information, including by following legal requirements, limiting access to the other party’s confidential information, and ensuring each other’s employees and other agents do not violate this agreement. Confidential information includes without limitation information designated verbally or in writing as confidential, information related to future products of the other party before the other party releases the information, audit information such as SOC2 and penetration-testing reports, trade secrets, and otherwise proprietary information.
You and Amplifier can only use or disclose each other’s confidential information for purposes related to this agreement and as required by law. You and Amplifier may not otherwise disclose to any party not subject to this agreement any confidential information of the other party without the consent of the other party or as required by law.
After this agreement ends, you and Amplifier must continue to protect each other’s confidential information and must return or destroy any confidential information of the other party, if requested by the other party, except to the extent necessary to comply with applicable law or other record keeping requirement.
You and Amplifier are entitled to seek all legal or equitable remedies that will satisfy each of our rights and obligations under this agreement or your obligation to pay for Amplifier Products or any additional features of any Amplifier Products you have purchased from Amplifier.
IF A COURT FINDS THAT EITHER PARTY BREACHED THIS CONTRACT AND LOSSES WERE SUFFERED AS A RESULT OF THAT BREACH, THE BREACHING PARTY WILL COMPENSATE THE NON-BREACHING PARTY FOR SUCH LOSSES ONLY TO THE EXTENT ALLOWED BY THIS AGREEMENT.
THE MAXIMUM CUMULATIVE LIABILITY UNDER ANY THEORY OF LIABILITY RELATED TO THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT OF FEES YOU PAID TO AMPLIFIER IN THE TWELVE MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY UNLESS THE LIABILITY RELATES TO YOUR VIOLATION OF AMPLIFIER’S INTELLECTUAL PROPERTY RIGHTS, A VIOLATION OF THE CONFIDENTIALITY REQUIREMENTS IN SECTION 4, OR AMPLIFIER’S INDEMNIFICATION OBLIGATIONS.
AMPLIFIER PROVIDES AMPLIFIER PRODUCTS “AS IS” AND “AS AVAILABLE.” YOU ASSUME THE ENTIRE RISK OF USING AMPLIFIER PRODUCTS. AMPLIFIER IS NOT RESPONSIBLE FOR YOUR USE OF AMPLIFIER PRODUCTS OR ANY CONSEQUENCES TO YOU OR ANYONE ELSE THAT MAY OCCUR RELATED TO YOUR USE OF AMPLIFIER PRODUCTS OR THE RELIANCE ON DATA PROCESSED BY AMPLIFIER PRODUCTS.
AMPLIFIER MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS RELATED TO AMPLIFIER PRODUCTS, INCLUDING WITHOUT LIMITATION WARRANTIES OR REPRESENTATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR REQUIREMENT, TITLE, QUALITY, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT.
YOU AND AMPLIFIER ARE NOT LIABLE TO EACH OTHER RELATED TO YOUR USE OF AMPLIFIER PRODUCTS FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES.
YOU AND AMPLIFIER ARE NOT LIABLE TO EACH OTHER RELATED TO YOUR USE OF AMPLIFIER PRODUCTS FOR ANY LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF DATA, EQUIPMENT REPLACEMENT COSTS, DATA REPLACEMENT COSTS, OR OPERATING COSTS.
YOU AND AMPLIFIER ARE NOT LIABLE TO EACH OTHER IF IT BECOMES IMPOSSIBLE TO COMPLY WITH THIS AGREEMENT, BUT EACH OF US MUST USE REASONABLE EFFORTS TO TRY TO MITIGATE SUCH ISSUES.
AMPLIFIER IS NOT LIABLE IN ANY WAY, UNDER ANY THEORY OF LIABILITY, FOR THIRD-PARTY PRODUCTS EVEN IF AMPLIFIER LISTS THE THIRD-PARTY PRODUCT ON ITS WEBSITE, THE AMPLIFIER PACK DISPENSARY, OR OTHER MEDIA OR THE THIRD-PARTY PRODUCT INTERACTS OR FUNCTIONS WITH AMPLIFIER PRODUCTS. AMPLIFIER MAY MAKE AVAILABLE THIRD-PARTY PRODUCTS THROUGH AMPLIFIER PRODUCTS, BUT ONLY “AS IS” AND “AS AVAILABLE.” YOU ASSUME THE ENTIRE RISK OF USING THIRD-PARTY PRODUCTS.
Notwithstanding the foregoing, Amplifier will indemnify you for damages awarded against you from a third-party claim that Amplifier Products infringe the intellectual property rights of that third party except to the extent the infringement arises from your breach of this agreement, the use of your data or any software or technology other than Amplifier Products, or otherwise from your actions. Amplifier may, in its sole and complete discretion, modify a Amplifier Product to make it no longer infringe a third-party right, obtain authorization for you to continue using a Amplifier Product under this agreement, or terminate this agreement or an Order and refund prior payments attributable to the unused remainder of the contract term of paid usage as provided in Section 6.
To be eligible for indemnification, (1) you must promptly notify Amplifier in writing of the action, proceeding, or other claim that may give rise to damages, and no later than notice sufficient to allow Amplifier to respond to such claims without prejudice; (2) you must reasonably cooperate with Amplifier at Amplifier’s expense; and (3) Amplifier must have exclusive right to control and direct the investigation, defense, or settlement of such claims. You may participate in the defense of such claims at your expense. You may not settle such claims without Amplifier’s prior written consent unless the settlement fully and unconditionally releases Amplifier from liability and does not require Amplifier to pay any amount, take any action, or admit any liability.
This agreement does not create any employment, partnership, joint venture, or other agency relationship between you and Amplifier. This agreement only acts to benefit you and Amplifier; it does not act to benefit any third party.
All obligations and rights in Section 2, Section 4, and Section 5 survive the end of this agreement.
You must send all notices related to this agreement in writing to legal@amplifiersecurity.com. Amplifier must send all notices related to this agreement in writing to the email address you used to accept this agreement below. You and Amplifier agree that notices sent pursuant to this agreement are legally sufficient for all purposes.