These Terms of Service (these “Terms,” and also referred to in certain Statements of Work as the “Terms of Use”) govern access to and use of (a) Ampd’s websites, including www.ampd.io, ampd.io, app.ampd.io, and related domains and subdomains (collectively, the “Site”), and (b) the Ampd Service. The Site and the Ampd Service are collectively referred to as the “Offerings.” The Offerings are provided by Metricstory Incorporated, a Delaware corporation, dba Ampd (“Ampd”).
A person who visits or uses the Site is a “User.” The entity identified as the subscriber or customer in an applicable Statement of Work is the “Subscriber.” Ampd and Subscriber are each a “Party” and together the “Parties.” By accessing or using an Offering, creating an account, submitting information through the Site, or executing a Statement of Work that references these Terms or the URL where they are posted, the applicable User or Subscriber agrees to be bound by these Terms. If you do not agree, do not access or use the Offerings. An individual acting for an organization represents that the individual has authority to bind that organization.
The Website Terms below apply to every User. The remaining provisions apply to a User or Subscriber only to the extent relevant to that person’s use of an Offering; provisions expressly addressing an SOW, subscription fees, Managed Services, Subscriber Data, or the Platform apply only to a Subscriber. If Ampd and Subscriber have entered into a separate written master services agreement, subscription agreement, or similar agreement governing the Ampd Service, that agreement will govern instead of these Terms to the extent stated in that agreement.
W.1 Eligibility and Business Use. The Offerings are intended for users who are at least eighteen (18) years old and are using them for business purposes. By using an Offering, a User represents that the User satisfies those requirements and has legal capacity to agree to these Terms.
W.2 Limited Site License and Acceptable Use. Subject to these Terms, Ampd grants each User a limited, revocable, non-exclusive, non-transferable right to access and use the Site for lawful internal business purposes, including evaluating Ampd’s products, reviewing Ampd materials, requesting information, and communicating with Ampd. A User may not: (a) copy, reproduce, distribute, publicly display, publish, modify, create derivative works from, sell, license, or commercially exploit the Site or its content except as Ampd expressly authorizes; (b) frame, mirror, or use the Site or its content on another site or service; (c) use bots, crawlers, scrapers, automated data-extraction tools, or similar means to access, index, collect, train on, or copy the Site or its content; (d) bypass access controls or interfere with the Site’s operation or security; (e) introduce malicious code; (f) impersonate another person or misrepresent an affiliation; (g) use the Site to violate law, infringe third-party rights, or transmit unlawful, deceptive, defamatory, harmful, or infringing material; or (h) use the Site or its content to develop, train, improve, or market a competing product, service, model, or dataset.
W.3 Site Content and Ampd Rights. The Site and all text, graphics, images, video, audio, software, interfaces, designs, databases, trademarks, logos, service marks, trade names, and other content made available by Ampd through the Site (collectively, “Site Content”) are owned by Ampd or its licensors and are protected by intellectual property and other laws. Except for the limited right in Section W.2, no right or license is granted in the Site or Site Content. “Ampd,” the Ampd logo, Ampd product names, and related marks are trademarks of Ampd and may not be used without Ampd’s prior written consent. Third-party names and marks belong to their respective owners.
W.4 Informational Content; No Reliance. Site Content is provided for general informational and promotional purposes and may not be complete, current, or error-free. Site Content does not constitute legal, financial, advertising, compliance, or other professional advice and is not a promise that any feature, result, price, or service will be available. A Subscriber’s purchased services and binding commercial terms are determined only by the applicable Agreement.
W.5 Third-Party Links and Services. The Site may contain links to or integrations with third-party websites, applications, content, or services. Ampd does not control or endorse them and is not responsible for their availability, content, security, privacy practices, or terms. A User accesses and uses them at the User’s own risk and should review the applicable third-party terms and privacy notices.
W.6 Submissions and Communications. A User is responsible for information, materials, or communications the User submits through the Site, including through contact, demo-request, event-registration, calculator, newsletter, or similar forms (“Submissions”), and represents that the User has the right to provide them. The User grants Ampd a non-exclusive right to host, copy, process, transmit, and use Submissions to respond to the User, provide requested information or services, operate and improve the Site, maintain business records, and otherwise as described in the Privacy Policy. A Submission identified as feedback may also be used under Section 5.5. A User should not submit sensitive personal information or confidential information through a public Site form unless Ampd expressly requests it through an appropriate secure channel.
W.7 Privacy. Ampd’s collection, use, and disclosure of personal information through the Offerings is described in the Ampd Privacy Policy available at https://www.ampd.io/privacy. The Privacy Policy is provided as a notice of Ampd’s personal-information practices and does not modify any Agreement between Ampd and a Subscriber. If there is a conflict between the Privacy Policy and an applicable SOW, data processing agreement, or other written agreement between Ampd and Subscriber regarding Subscriber Data or personal information, the applicable written agreement will control.
W.8 Electronic Communications. A User consents to receiving transactional and service-related communications electronically, including by email or through an account. Promotional communications are subject to applicable law and the choices described in the Privacy Policy, and a User may opt out using the unsubscribe mechanism in the message. Opting out of promotional messages does not prevent Ampd from sending non-promotional communications relating to an inquiry, account, security matter, or Agreement.
W.9 Intellectual Property Complaints. Ampd respects third-party intellectual property rights. A person who believes that material made available by Ampd through an Offering infringes that person’s intellectual property rights may send a written notice to info@ampd.io containing sufficient information to identify the protected work, the allegedly infringing material and its location, the complaining party and its contact information, and the basis for the claim. Ampd may investigate the claim and remove or restrict access to the affected material as Ampd determines appropriate.
W.10 Site Changes; Suspension. Ampd may modify, suspend, withdraw, restrict, or discontinue all or any part of the public Site or Site Content at any time. Ampd may restrict or terminate a User’s access if Ampd reasonably believes the User violated these Terms or created legal, security, or operational risk. To the extent an active SOW requires access to app.ampd.io or another portion of the Site, Ampd’s obligations regarding that access remain subject to the Agreement.
W.11 International and Export Use. Ampd operates the Site from the United States and does not represent that the Offerings are appropriate or available in every location. A User is responsible for compliance with local law. No User may access, use, export, re-export, release, or transfer an Offering, software, technology, or related technical data in violation of U.S. or other applicable export-control, sanctions, or import laws, including restrictions administered by the U.S. Department of Commerce and the U.S. Department of the Treasury’s Office of Foreign Assets Control.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures necessary to allow Authorized Users to access the Ampd Service.
1.2 “Ampd Service” means the Platform, Managed Services, and any other services delivered by Ampd to Subscriber, as more fully described in the applicable SOW.
1.3 “Authorized User” means an employee, representative, or consultant of Subscriber whom Subscriber authorizes to use the Ampd Service on Subscriber’s behalf and to whom Access Protocols have been supplied for that purpose.
1.4 “Documentation” means the technical materials provided or made available by Ampd that describe the features, functionality, or operation of the Platform.
1.5 “Managed Services” means the campaign management, consulting, optimization, account management, or other professional services identified as Managed Services in an applicable SOW.
1.6 “Permitted Affiliate” means a parent or subsidiary of, or an entity under common control with, Subscriber that is expressly listed as a permitted affiliate in an applicable SOW.
1.7 “Platform” means Ampd’s hosted software-as-a-service platform and related attribution, traffic-routing, optimization, reporting, ad-management, and other technologies identified in an applicable SOW.
1.8 “SOW” means a statement of work, order form, or similar ordering document entered into by the Parties that references these Terms or the URL where these Terms are posted.
1.9 “Subscriber Data” means data relating to Subscriber or its advertising, marketplace, sales, account, or campaign activity that Subscriber submits to the Ampd Service or that Ampd receives from a Third Party Service as authorized by Subscriber. Subscriber Data excludes de-identified or aggregated data that does not reasonably identify Subscriber or any individual.
1.10 “Third Party Service” means a third-party advertising platform, marketplace, data source, application, service, API, or other system that Subscriber connects to or uses with the Ampd Service, including Google Ads, Meta, TikTok, Amazon, and Walmart services, as applicable.
2.1 Statements of Work. The scope, products, features, channels, marketplaces, brands, fees, service period, renewal terms, usage limits, and other business terms for the Ampd Service will be set forth in one or more SOWs. Each SOW incorporates these Terms by reference. Each SOW, together with these Terms, constitutes a separate agreement between the Parties (collectively, the “Agreement”).
2.2 Order of Precedence. If there is a conflict or inconsistency between an SOW and these Terms, the SOW will control with respect to the Ampd Service provided under that SOW. These Terms will control over the Documentation. A provision in an SOW that is expressly limited to that SOW will not amend these Terms for any other SOW.
2.3 No Reliance on Future Functionality. Subscriber agrees that its purchase is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Ampd regarding future functionality or features.
3.1 Right to Use. Subject to the Agreement and payment of all applicable fees, Ampd grants Subscriber and its Permitted Affiliates, solely for their internal business purposes during the applicable SOW term, a limited, revocable, non-sublicensable, non-transferable, non-exclusive right to access and use the Ampd Service and Documentation. A Permitted Affiliate may access and use the Ampd Service only under the SOW that lists it. Subscriber is responsible and liable for each Permitted Affiliate’s and Authorized User’s compliance with the Agreement, and their acts and omissions will be deemed Subscriber’s acts and omissions.
3.2 Restrictions. Subscriber will not, and will not permit any other person to: (a) reverse engineer, disassemble, decompile, modify, copy, translate, or create derivative works of the Ampd Service, except to the extent a restriction is prohibited by applicable law; (b) sell, resell, license, sublicense, distribute, rent, lease, provide service-bureau access to, or otherwise make the Ampd Service available to a third party, other than an Authorized User or Permitted Affiliate as permitted by the Agreement; (c) interfere with or disrupt the integrity, security, performance, or operation of the Ampd Service or any data contained in it; (d) bypass or circumvent any access, usage, or security control; (e) use any automated script, scraper, crawler, or similar means to access or copy data from the Ampd Service, except as expressly authorized in writing by Ampd; (f) introduce malicious code; (g) use the Ampd Service to violate law or third-party rights or to harm, threaten, or harass any person or organization; or (h) access or use the Ampd Service to build or assist in building a similar or competitive product or service.
3.3 Changes to the Ampd Service. Ampd may release updates, enhancements, modifications, or other changes to the Ampd Service from time to time. Any such change will be subject to the Agreement unless Ampd expressly states otherwise.
3.4 Monitoring and Suspension. Ampd may monitor use of the Ampd Service to verify compliance with the Agreement. Ampd may suspend access to the Ampd Service if Ampd reasonably believes that Subscriber’s use (a) poses a security risk, threatens the integrity or availability of the Ampd Service or any network, (b) violates Section 3.2, (c) subjects Ampd or a third party to material liability, or (d) is more than ten (10) days delinquent in payment. When reasonably practicable, Ampd will provide notice and an opportunity to cure before suspension. Suspension does not excuse Subscriber’s payment obligations.
4.1 Accounts and Authorized Users. Subscriber is responsible for obtaining and maintaining the equipment, connectivity, and ancillary services needed to access the Ampd Service. Subscriber is responsible for all activity under its accounts and for maintaining the confidentiality and security of Access Protocols. Subscriber will promptly notify Ampd at info@ampd.io of any known or suspected unauthorized access or use.
4.2 Third Party Accounts and Authorization. Subscriber will maintain all Third Party Service accounts and permissions reasonably required for Ampd to provide the Ampd Service. By linking or authorizing a Third Party Service, Subscriber authorizes Ampd, during the applicable SOW term and solely to provide the Ampd Service, to access, make available, transmit, and store information in Subscriber’s Third Party Service account and to perform operations through that account on Subscriber’s behalf. Subscriber represents and warrants that it has all rights and permissions necessary to grant that authorization without violating applicable terms or obligating Ampd to pay fees or accept usage limitations not expressly agreed by Ampd.
4.3 Advertising Spend and Third-Party Charges. Subscriber is solely responsible and liable to Third Party Services for Subscriber’s advertising spend and other third-party charges. Subscriber will reimburse Ampd for any amounts Ampd is required to pay a Third Party Service for Subscriber’s advertising spend or other activity.
4.4 Third-Party Dependencies. The Ampd Service may depend on Third Party Services, APIs, attribution protocols, tracking scripts, data feeds, policies, and platform functionality outside Ampd’s control. Ampd is not responsible for interruptions, delays, data discrepancies, attribution limitations, lost functionality, or other failures caused by a Third Party Service, including changes to APIs, policies, rate limits, authentication, data availability, or platform functionality.
4.5 Subscriber Materials and Approvals. Subscriber is responsible for the accuracy, legality, and appropriateness of all materials, instructions, claims, content, targeting criteria, budgets, and other information it supplies or approves. Subscriber is solely responsible for reviewing and approving advertising content before publication and for ensuring that its products, campaigns, and use of the Ampd Service comply with applicable advertising, consumer protection, privacy, intellectual property, and other laws and with Third Party Service requirements. Ampd does not guarantee campaign outcomes, return on ad spend, sales, conversion rates, attribution accuracy, or marketplace buy-box retention.
4.6 Agencies. If Subscriber is an advertising agency, marketing firm, or other intermediary acting for a brand, seller, merchant, or other customer (a “Brand”), Subscriber represents and warrants that it has authority to bind the Brand to the applicable obligations, grant Ampd access to the Brand’s accounts, and provide the Brand’s data and campaign materials. Unless an SOW expressly states otherwise, Subscriber remains primarily liable for all payment and compliance obligations under the Agreement, whether or not the Brand pays Subscriber.
5.1 Ampd Technology. Ampd and its licensors retain all right, title, and interest in and to the Platform, Documentation, Ampd’s technology, methods, models, algorithms, workflows, know-how, and materials, all improvements, enhancements, configurations, and modifications to them, and all data, analytics, and insights generated by the Platform that do not constitute Subscriber Data. Except for the limited rights expressly granted in the Agreement, no rights are granted to Subscriber by implication, estoppel, or otherwise.
5.2 Subscriber Data. As between the Parties, Subscriber retains all right, title, and interest in and to Subscriber Data. Subscriber grants Ampd and its service providers a non-exclusive, worldwide license during the applicable SOW term to host, copy, process, transmit, display, and otherwise use Subscriber Data solely as necessary to provide, secure, support, and maintain the Ampd Service and to comply with law. Subscriber represents and warrants that it has all rights, consents, and permissions necessary for Ampd to process Subscriber Data as contemplated by the Agreement.
5.3 Protection and Availability of Subscriber Data. Ampd will maintain reasonable administrative, physical, and technical safeguards designed to protect the confidentiality of Subscriber Data. The Ampd Service is not a data-backup service. Subscriber is responsible for maintaining appropriate copies of Subscriber Data, and Ampd is not responsible for loss or unavailability of Subscriber Data caused by a Third Party Service or circumstances outside Ampd’s reasonable control.
5.4 Aggregated and De-identified Data. Subscriber grants Ampd a non-exclusive, perpetual, worldwide, royalty-free right to compile, synthesize, analyze, and use data derived from Subscriber Data on an aggregated or de-identified basis, provided that the resulting data does not reasonably identify Subscriber, a Brand, an Authorized User, or any individual. Ampd may use such data to operate, analyze, secure, support, improve, and develop the Ampd Service and related products and services; train and improve algorithms and machine-learning models; create benchmarks; and publish aggregated results.
5.5 Feedback. Subscriber grants Ampd a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use and incorporate into the Ampd Service any suggestions, enhancement requests, recommendations, or other feedback provided by Subscriber or its Authorized Users, provided that the feedback does not include Subscriber’s Confidential Information.
5.6 Advertising Copy and Other Deliverables. Unless an SOW expressly provides otherwise, to the extent Ampd creates advertising copy or other campaign-specific deliverables for Subscriber, Ampd grants Subscriber a non-exclusive, non-transferable license during the applicable SOW term to use those deliverables solely in campaigns covered by the SOW and operated through or in connection with the Ampd Service. Subscriber remains responsible for reviewing and approving each deliverable before use. Ampd retains all rights in its pre-existing materials, templates, tools, methods, and underlying technology.
5.7 Customer Identification. Subscriber agrees that Ampd may use Subscriber’s name and logo in Ampd’s customer lists and marketing materials solely to identify Subscriber as an Ampd customer. Subscriber may revoke this permission by written notice, after which Ampd will discontinue new uses within a commercially reasonable period.
6.1 Definition. “Confidential Information” means nonpublic information of a Party (the “Disclosing Party”), whether disclosed orally, visually, electronically, or in writing, that is identified as confidential or that the receiving Party (the “Receiving Party”) knows or reasonably should know is confidential or proprietary. Confidential Information includes personal data and financial, pricing, strategy, technical, security, product, and customer information. Confidential Information does not include information that the Receiving Party can document: (a) was lawfully known to it without restriction before disclosure; (b) was independently developed without access to or use of the Disclosing Party’s Confidential Information; (c) becomes publicly available through no breach of the Agreement; or (d) is lawfully received from a third party without a duty of confidentiality.
6.2 Obligations. The Receiving Party will: (a) use Confidential Information only to perform or exercise rights under the Agreement; (b) protect it using at least the same degree of care the Receiving Party uses for its own similar information, but no less than reasonable care; and (c) disclose it only to employees, affiliates, contractors, professional advisers, and agents who need to know it for purposes of the Agreement and are bound by confidentiality obligations at least as protective as those in this Section. The Receiving Party is responsible for those persons’ compliance with this Section.
6.3 Required Disclosure. The Receiving Party may disclose Confidential Information to the extent required by law, subpoena, or court or governmental order, provided that, to the extent legally permitted, it gives the Disclosing Party prompt written notice and reasonable assistance, at the Disclosing Party’s expense, to seek confidential treatment or a protective order. The Receiving Party will disclose only the portion legally required.
6.4 Equitable Relief. Unauthorized use or disclosure of Confidential Information may cause irreparable harm for which monetary damages are inadequate. The Disclosing Party may seek appropriate equitable relief, in addition to other available remedies, without posting bond except as required by law.
7.1 Fees. Subscriber will pay the fees stated in each SOW. Unless an SOW expressly states otherwise, all fees are in U.S. dollars, non-cancelable, and non-refundable. Subscriber is responsible for transaction costs, currency-conversion charges, and wire-transfer fees associated with its payments.
7.2 Invoicing and Payment. Unless the applicable SOW states otherwise, invoices are due within thirty (30) days after receipt. Payments will be made by ACH or wire transfer. If Ampd permits payment by credit card, Ampd may impose an additional processing charge of up to three percent (3%) of the amount paid, to the extent permitted by applicable law and applicable payment-card network rules. Past-due amounts accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower. Subscriber will reimburse Ampd for reasonable collection costs, including attorneys’ fees, incurred to collect undisputed past-due amounts.
7.3 Taxes. Fees exclude all sales, use, excise, value-added, withholding, and other taxes and all export, import, customs, and similar charges arising from the Agreement, other than taxes based on Ampd’s net income. Subscriber will pay such amounts or provide a valid exemption certificate. If law requires Subscriber to withhold an amount from a payment, Subscriber will gross up the payment so that Ampd receives the amount it would have received absent the withholding, except to the extent prohibited by law.
7.4 Disputes. Subscriber must notify Ampd in writing of any good-faith invoice dispute within fifteen (15) days after receipt and timely pay all undisputed amounts. The Parties will work in good faith to resolve the dispute. A billing dispute does not suspend Subscriber’s obligation to pay other amounts when due.
8.1 Limited Warranties. Ampd warrants that, during the applicable SOW term: (a) the Platform will operate in accordance with the Documentation in all material respects; (b) Ampd will use commercially reasonable efforts designed to prevent the Platform from transmitting viruses, malware, or other harmful code; (c) Managed Services and other professional services will be performed in a professional and workmanlike manner; and (d) Ampd will use its access to Subscriber’s Third Party Service accounts only to provide the Ampd Service in accordance with the Agreement. If Subscriber promptly notifies Ampd in writing of a breach of this Section 8.1, Ampd will use commercially reasonable efforts to reperform or correct the affected Ampd Service. Subject to Subscriber’s termination and refund rights under Section 11.3, the foregoing will be Subscriber’s sole and exclusive remedy for such breach.
8.2 Compliance with Law. Each Party represents and warrants that it is, and during the Agreement will remain, in material compliance with the laws and regulations applicable to its performance under the Agreement, including applicable data-protection and privacy laws.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SITE, SITE CONTENT, AMPD SERVICE, DOCUMENTATION, AND ALL RELATED MATERIALS ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” AMPD AND ITS AFFILIATES, SUPPLIERS, AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, GUARANTEES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, AND RESULTS. AMPD DOES NOT WARRANT THAT AN OFFERING WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; THAT SITE CONTENT WILL BE COMPLETE OR CURRENT; OR THAT AN OFFERING WILL ACHIEVE ANY PARTICULAR ADVERTISING, SALES, ATTRIBUTION, OR BUSINESS RESULT. SOME JURISDICTIONS DO NOT ALLOW CERTAIN DISCLAIMERS, SO SOME OF THE FOREGOING MAY NOT APPLY TO A USER OR SUBSCRIBER.
9.1 Mutual Indemnity. Each Party (the “Indemnifying Party”) will indemnify, defend, and hold harmless the other Party and its directors, officers, employees, contractors, and agents (each, an “Indemnified Party”) from and against third-party claims, actions, damages, losses, liabilities, judgments, costs, and expenses, including reasonable attorneys’ fees (collectively, “Claims”), arising out of or relating to (a) the Indemnifying Party’s breach of the Agreement or (b) the Indemnifying Party’s gross negligence or willful misconduct.
9.2 Indemnity by Ampd. Ampd will indemnify, defend, and hold harmless Subscriber and its directors, officers, employees, contractors, and agents from Claims alleging that the Platform, as delivered by Ampd and used as authorized by the Agreement, infringes, misappropriates, or violates a third party’s intellectual property rights. If the Platform becomes, or Ampd believes is likely to become, subject to such a claim, Ampd may, at its option: (a) procure the right for Subscriber to continue using the Platform; (b) replace the affected portion with a non-infringing alternative that does not materially impair its functionality; (c) modify the affected portion so it becomes non-infringing; or (d) terminate the affected SOW and refund prepaid fees attributable to the terminated portion of the remainder of its then-current term. Ampd has no obligation for a claim arising from (i) use contrary to the Agreement or Documentation; (ii) combination with products, equipment, software, services, or data not supplied or authorized by Ampd; (iii) modification by anyone other than Ampd or its authorized agents; or (iv) Subscriber Data, Subscriber materials, or compliance with Subscriber’s instructions. This Section 9.2 states Ampd’s entire liability and Subscriber’s exclusive remedy for intellectual-property infringement claims relating to the Platform.
9.3 Indemnity by User and Subscriber. Each User and Subscriber will indemnify, defend, and hold harmless Ampd and its directors, officers, employees, contractors, and agents from Claims arising out of or relating to (a) that person’s access to or misuse of the Site, Site Content, or other Offering; (b) a Submission, Subscriber Data, or other material supplied or approved by that person; or (c) that person’s violation of law, third-party rights, or these Terms. In addition, Subscriber will indemnify, defend, and hold harmless those Ampd parties from Claims arising out of or relating to (i) Subscriber’s or an Authorized User’s use of the Ampd Service, except to the extent subject to Ampd’s obligations under Section 9.1 or 9.2; (ii) Subscriber’s or a Brand’s products, advertising, claims, campaigns, content, targeting, or business practices; (iii) Subscriber’s relationship with a Brand or lack of authority to act for a Brand; or (iv) Subscriber’s violation of Third Party Service terms.
9.4 Procedure. A person seeking indemnification under this Section (the “Indemnified Party”) must: (a) promptly notify the person required to provide indemnification (the “Indemnifying Party”) in writing of the Claim, except that delay will relieve the Indemnifying Party only to the extent materially prejudiced; (b) give the Indemnifying Party sole control of the defense and related settlement negotiations; and (c) reasonably cooperate, at the Indemnifying Party’s expense. The Indemnifying Party may not settle a Claim in a manner that imposes monetary liability on, requires an admission of liability by, or imposes non-monetary obligations on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
10.1 Excluded Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR A PERSON’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR A PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) AMPD AND ITS AFFILIATES, SUPPLIERS, AND LICENSORS WILL NOT BE RESPONSIBLE FOR LOSS OR DAMAGE CAUSED BY THE SITE, SITE CONTENT, FAILURE OF THE AMPD SERVICE, LOSS OR INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, GOODS, OR TECHNOLOGY, OR ANY THIRD PARTY SERVICE; AND (B) NEITHER AMPD, A USER, SUBSCRIBER, NOR THEIR RESPECTIVE AFFILIATES, SUPPLIERS, OR LICENSORS WILL BE LIABLE FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, OR FOR LOST PROFITS, REVENUE, BUSINESS, GOODWILL, OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR A PERSON’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR A PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO AN AGREEMENT WILL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO AMPD UNDER THE APPLICABLE SOW DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; AND (B) AMPD’S AGGREGATE CUMULATIVE LIABILITY ARISING SOLELY OUT OF A USER’S ACCESS TO OR USE OF THE PUBLIC SITE OR SITE CONTENT, WHERE THE USER IS NOT A SUBSCRIBER AND HAS PAID NO FEES TO AMPD, WILL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100). SUBSCRIBER’S PAYMENT OBLIGATIONS ARE NOT LIMITED BY THIS SECTION.
10.3 Allocation of Risk. The limitations in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, statute, or otherwise, and even if a limited remedy fails of its essential purpose. Each User acknowledges that these limitations are a material basis on which Ampd makes the public Site available without charge, and the Parties acknowledge that the fees reflect the allocation of risk in each Agreement.
11.1 Term of These Terms. For a User of the Site, these Terms begin when the User first accesses or uses the Site and continue while the User accesses or uses it. For Subscriber, these Terms begin on the effective date of Subscriber’s first SOW that incorporates them or, if earlier, the date Subscriber creates an account or first accesses or uses the Ampd Service after receiving them. Subscriber’s Terms continue until all SOWs have expired or been terminated and all surviving obligations have been satisfied (the “Term”). Each SOW will have the initial term, renewal terms, and non-renewal process stated in that SOW.
11.2 No Termination for Convenience During an SOW Term. Unless an SOW expressly states otherwise, Subscriber may not terminate that SOW for convenience during its then-current term. If Subscriber purports to terminate an SOW for convenience or discontinues use of the Ampd Service before the end of that term, all fixed and minimum fees that would have become payable for the remainder of the term will become immediately due, in addition to accrued usage-based fees and other amounts then owing. This Section does not limit Subscriber’s right to provide timely non-renewal notice under an SOW.
11.3 Termination for Cause. Either Party may terminate these Terms or an affected SOW for the other Party’s material breach if the breach remains uncured thirty (30) days after written notice describing the breach. Ampd may suspend Subscriber’s access during any cure period if reasonably necessary to protect the Ampd Service or Third Party Services or if the breach involves nonpayment, unauthorized use, or a material security risk. If Subscriber terminates an SOW for Ampd’s uncured material breach, Ampd will refund prepaid fees attributable to the terminated Ampd Service for the remainder of the then-current SOW term on a pro rata basis within thirty (30) days after termination.
11.4 Continuing SOWs. Termination of one SOW does not terminate another SOW. If these Terms are otherwise terminated while an SOW remains in effect, the Agreement will continue to govern that SOW until it expires or is terminated, unless Ampd terminated these Terms for Subscriber’s material breach.
11.5 Effect of Expiration or Termination. Upon expiration or termination of an SOW: (a) all rights to use the affected Ampd Service will end; (b) all amounts owed under the affected SOW will become immediately due; and (c) each Party will, upon written request, return or destroy the other Party’s tangible Confidential Information, except for copies maintained in routine backups or as required by law, which will remain protected under Section 6. Sections 1, 5 through 7, 8.3, 9, 10, 11.5, 12, 13, 14, and any provisions that by their nature should survive will survive expiration or termination.
Neither Party will be liable for failure or delay in performing an obligation, other than a payment obligation, caused by events beyond its reasonable control, including strikes, labor disputes, shortages, riots, civil unrest, epidemics, pandemics, fires, floods, severe weather, explosions, acts of God, war, terrorism, governmental action, earthquakes, utility or telecommunications failures, or material shortages (a “Force Majeure Event”). The affected Party will notify the other Party as soon as reasonably practicable and use commercially reasonable efforts to mitigate the effect. If a Force Majeure Event continues for more than thirty (30) days after notice and materially prevents performance, the unaffected Party may terminate the affected SOW by written notice. If Subscriber terminates for this reason, Ampd will refund prepaid fees attributable to the terminated Ampd Service for the remainder of the then-current SOW term on a pro rata basis within thirty (30) days.
The Platform and Documentation are “commercial products,” “commercial services,” “commercial computer software,” and “commercial computer software documentation,” as applicable, under the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement. Any use, reproduction, release, modification, disclosure, or transfer by the U.S. Government is governed solely by the Agreement and is prohibited except to the extent expressly permitted by the Agreement.
14.1 Governing Law; Venue. These Terms and each Agreement are governed by the laws of the State of Delaware, without regard to conflict-of-laws principles. Each User and Party irrevocably submits to the exclusive personal jurisdiction and venue of the state and federal courts located in New Castle County, Delaware, for any dispute arising out of or relating to an Offering, these Terms, or an Agreement.
14.2 Assignment. Neither Party may assign or transfer an Agreement or any right or obligation under it without the other Party’s prior written consent, except that either Party may assign an Agreement without consent in connection with a merger, acquisition, reorganization, change of control, sale of all or substantially all of its assets to which the Agreement relates, or operation of law. A User that is not a Subscriber may not assign these Terms without Ampd’s prior written consent. Ampd may assign these Terms in connection with any of the transactions described above. Any prohibited assignment is void. These Terms and each Agreement bind and benefit the applicable parties and their permitted successors and assigns.
14.3 Independent Contractors. The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship. Neither Party has authority to bind the other except as expressly stated in the Agreement.
14.4 Notices. Notices under the Agreement must be in writing and delivered by personal delivery, nationally recognized overnight courier, registered or certified mail (return receipt requested), or email. Notices to Ampd must be sent to Metricstory Incorporated dba Ampd, 506 2nd Avenue, Suite 1104, Seattle, WA 98104, Attn: Legal, with a copy by email to info@ampd.io. Notices to Subscriber must be sent to the business contact, billing contact, or notice address stated in the applicable SOW. A Party may update its notice information by notice under this Section. Email is sufficient for renewal and non-renewal notices if the applicable SOW so provides.
14.5 Severability. If a provision of these Terms or an Agreement is held invalid or unenforceable, the remaining provisions will remain in effect, and the invalid or unenforceable provision will be modified to the minimum extent necessary to make it valid and enforceable while most closely reflecting the applicable parties’ intent.
14.6 Waiver. A waiver must be in writing and signed by the waiving person. A waiver or failure to enforce a provision on one occasion is not a waiver of that provision on another occasion or of any other provision.
14.7 No Third-Party Beneficiaries. Except for Indemnified Parties under Section 9, these Terms and each Agreement are for the sole benefit of the applicable parties and do not confer rights or remedies on any other person.
14.8 Counterparts; Electronic Signatures. An SOW may be executed in counterparts, including by electronic signature or electronic transmission, each of which is deemed an original and all of which together form one instrument.
14.9 Entire Agreement; Amendment. For a User that is not a Subscriber, these Terms are the complete agreement between the User and Ampd regarding use of the Site. For Subscriber, the Agreement is the complete and exclusive agreement between the Parties regarding its subject matter. In each case, the applicable agreement supersedes prior or contemporaneous proposals, discussions, representations, and agreements regarding that subject matter. Except as provided in Section 14.10, an amendment or waiver must be in writing and signed by authorized representatives of the applicable parties. Purchase orders and other Subscriber forms are for administrative convenience only, and any additional or conflicting terms in them are void.
14.10 Updates to Online Terms. Ampd may update these Terms by posting a revised version at https://www.ampd.io/terms and changing the “Last Updated” date. For a User that is not a Subscriber, revised Terms become effective when posted, and continued use of the Site after posting constitutes acceptance. Unless the Parties agree otherwise in writing, an update will not modify an SOW during its then-current term. Revised Terms will apply to an SOW entered into or renewed after they are posted if that SOW references the online Terms. Ampd will provide reasonable advance notice of a material update to the business contact identified in an applicable SOW.
14.11 Interpretation. Section headings are for convenience only. “Including” means “including without limitation.” References to a statute or regulation include amendments and successor provisions. No presumption will arise against a party on the ground that the party drafted these Terms or an Agreement. If these Terms are translated, the English-language version controls to the extent permitted by law.
