Amiato Service Agreement
(Terms of Service)
This Amiato Service Agreement (this "Agreement") sets forth the terms and conditions (“Terms of Service”) under which Amiato, Inc. (“Amiato” or “we”), makes available its data analysis service, as identified in the Service and Pricing Schedule (the “Schedule”) and further described below (the “Service”), to its customer (“Customer” or “you”). Please read this Agreement carefully. These Terms of Service, including the Schedule, constitute a binding legal agreement between you and Amiato as of the Effective Date set forth in the Schedule.
YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE “I AGREE” OR “I ACCEPT” BUTTON YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event, “you” and “your” will refer to that company or other legal entity.
Description of the Service
The Amiato Service collectively includes the Site, a data analysis service, a data collection and integration service, and additional interfaces and software provided on or in connection with these services, all as more fully described in the Schedule. The Service collects and stores certain data and information as provided to us by you (such data and information, “Customer Data”) either directly or through access to external sources which store this data such as database or other online services. The Service enables users to query and generate results based on Customer Data either programmatically or through visual interfaces. The Service parameters and pricing applicable to you are set forth on the Schedule.
Subject to your compliance with the terms and conditions of this Agreement, Amiato hereby grants you a non-exclusive license, with no right to sublicense, to use the Service in accordance with this Agreement and the Schedule. The foregoing license includes the right to use any documentation and other materials provided by Amiato in connection with the Service.
You will not nor will you allow any third party to (i) modify, adapt, translate or otherwise create derivative works based on the Service, except as may otherwise specified in the Schedule; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the underlying ideas, algorithms, structure or organization of the Service; (iii) rent, lease, sell, assign, distribute or otherwise transfer rights in the Service or offer the Service on a timesharing, service bureau or hosted service basis; or (iv) use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the Service. You will comply with all applicable laws and regulations in your access to and use of the Service.
A Monthly Subscription Fee specified in the Schedule is due and payable monthly at the time of invoice. Immediately upon becoming due, payment may be made by action of Amiato as authorized through a mutually agreed credit card facility. If so specified in the Schedule, Amiato may make the Service available at no charge on a trial basis for a limited period and may provide options for continuing Service after expiration of the trial period. Except as may be otherwise specified in the Schedule, you are responsible for all fees and charges of third parties, such as internet and web service providers and third party software providers, related to accessing and using our Service.
In order to use the Service you must register to create an account (“Account”). During the registration process, you will be required to provide certain information to us and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Amiato reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions, and including cases where you have disclosed your password to a third party. You will immediately notify Amiato of any unauthorized use of your Account. By signing up for the Amiato Service you agree that Amiato may send you occasional emails relevant to your use of the Amiato Service.
Use of Customer Data
You have the exclusive right to use all Customer Data and all results generated by the Service based on Customer Data, for any purpose related to your business. Notwithstanding the foregoing, you acknowledge and agree that Amiato may, at any time and in its sole discretion: (i) use any or all Customer Data internally as needed to troubleshoot issues or improve the Service; (ii) use, for its internal purposes, statistics collected about how Customer Data is used with the Amiato Service; and (iii) publish for analytical and promotional purposes aggregated studies derived from data taken from a multitude of customers so long as we do not disclose any personally identifiable information (PII).
The Amiato Service and any Amiato Client Application that may be provided by Amiato are protected by copyright, trademark, and other laws of the United States and foreign countries. Amiato and its licensors exclusively own all right, title and interest in and to the Amiato Service and any such Amiato Client Application, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Amiato Service and any such Amiato Client Application.
Term, Termination and Account Cancellation
The Term during which the Service will be provided to you is set forth in the Schedule. Either you or Amiato may terminate this Agreement and the Service provided hereunder, with or without cause, upon 30 days prior written notice.
Upon expiration or any termination of this Agreement, your account will be cancelled and you must promptly cease any further use of the Amiato Service. The Customer Data that we store for you will be deleted and may become unrecoverable. All provisions of this Agreement not specifically related to the mechanics of providing the Amiato Service shall survive.
THE AMIATO SERVICE AND ANY AMIATO CLIENT APPLICATION ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, AMIATO DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. AMIATO MAKES NO WARRANTY THAT THE AMIATO CLIENT APPLICATION OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AMIATO OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend, indemnify, and hold Amiato, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or relating to: (i) your use of or access to the Amiato Client Application or the Service: (ii) your breach of this Agreement; or (iii) your violation of applicable laws, rules or regulations in connection with your use of the Service.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE AMIATO CLIENT APPLICATION AND THE SERVICE REMAINS WITH YOU. NEITHER AMIATO NOR ANY OTHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL), OR FOR THE COST OF PROCURING ALTERNATE OR SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE AMIATO CLIENT APPLICATION OR THE SERVICE, WHETHER BASED ON WARRANTY, INDEMNIFICATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AMIATO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL AMIATO’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE AMIATO CLIENT APPLICATION OR THE SERVICE EXCEED THE GREATER OF FIVE HUNDRED U.S. DOLLARS ($500) OR THE FEES PAID TO AMIATO DURING THE 12 MONTH PERIOD PROCEEDING THE ACCRUAL OF THE FIRST CLAIM ASSERTED. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AMIATO AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Amiato used herein are trademarks or registered trademarks of Amiato. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement will be the federal or state courts located in the Northern District of California and each of the parties hereto consents to the personal jurisdiction and venue in such courts.
This Agreement constitutes the entire and exclusive understanding and agreement between Amiato and you regarding the Amiato Client Application and the Service, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between Amiato and you regarding the Service.
You may not assign or transfer this Agreement, by operation of law or otherwise, without Amiato’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null and of no effect. Amiato may assign or transfer this Agreement, at its sole discretion, without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to this Agreement, will be in writing and given: (i) by Amiato via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of Amiato to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Amiato. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
If you have any questions about this Agreement, please contact Amiato at firstname.lastname@example.org.
Last updated: April 8, 2013