AMT Service Agreement
Terms and Conditions
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF SERVICES PROVIDED BY AUTOMOBILE TECHNOLOGIES, INC. (“AMT” or “US” OR “OUR”). BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING THE BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND AMT BILLING POLICIES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT AND THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU,” “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Agreement” means this Agreement and the Terms and Conditions set forth herein.
- “Beta Service” means Our services that are not generally available to customers.
- “Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via the ReconPro website or log in to the applicable Service.
- “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.
- “Non-AMT Applications” means a Web-based or offline software application that is provided by You or a third party and interoperates with a Service.
- “Order Form” means an ordering document specifying the Service to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto, which may be in the form of an SSW. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- “Purchased Service” means Service that You or Your Affiliate purchase under an Order Form for a Fee, as distinguished from those provided pursuant to the Repair360 Free Service or a free trial.
- “Repair360 Free Service” means a limited feature Software as a Service accessed from mobile cellular devices, computers, tablets, notebooks or other mobile devices hand offered at no charge to Customer.
- “AMT Website” means the AMT hosted website on which this Agreement is displayed.
- “AMT Service” means the full feature Software as a Service accessed from mobile cellular devices, computers, tablets, notebooks or other mobile devices offered in exchange for payment of a fee. Currently, AMT Service offering includes, but is not limited to such software products as ReconPro™, ReconMonitor, Repair360, InspectionNotes, CollisionNotes, and others.
- “Service” means the products and services that are ordered by You under an Order Form and made available online by Us, including associated offline components, as described in the Documentation and may include the Repair360 Service or the AMT Service.
- “SSW” means the various functions and features that a Customer may select on AMT’s Website, also referred to as the Service Selection Website.
- “User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
- “We,” “Us” or “Our” means AutoMobile Technologies, Inc. a California corporation.
- “You” or “Your” means the individual, company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity.
- “Customer Data” means electronic data and information submitted by or for You to the Purchased Service or collected and processed by or for You using the Purchased Service, excluding any Non-AMT Applications.
2. Software Functions and Features.
- The Repair360 Service offers a limited number of functions and features and is subject to the limitations set forth. We reserve the right, in our sole discretion, to add or remove functions and features.
- AMT Service offers a number of functions and features that Customer can select on a webpage on the AMT Website (“Service Selection Webpage” or “SSW”) that will appear following Customer’s acceptance of this Agreement and payment of any Fees.
3. License to Software, Access to Site.
- For the Repair360 Service for the Term, AMT hereby grants Customer a non-exclusive, non-transferable license and right to use certain features and functions of the AMT Service via the Recon Pro Website.
- For the AMT Service for the Term, AMT hereby grants Customer a non-exclusive, non-transferable license and right to use certain features and functions of the AMT Service via the ReconPro Website. Such use rights shall apply only to those features and functions of the AMT Service that Customer selects on the SSW, subject to AMT’s acceptance of such selections and the terms and conditions of this Agreement. The foregoing license shall enable Customer and its Authorized Users to use the AMT Service for that number of Devices for which Customer has paid licenses as set forth in the SSW. Customer shall be responsible for obtaining and providing the Devices and maintaining them in good and functional condition and repair.
- The license and right of access and use of the AMT Service as set forth above is conditioned on Customer’s payment of all fees and compliance with all other terms and conditions set forth herein and in all other documents between AMT and Customer, including but not limited to the SSW and AMT Billing Policies which is set forth at https://amt.company/billing-policies and incorporated into this Agreement..
- You grant Us and Our Affiliates a worldwide, limited-term license to host, copy, transmit and display Customer Data, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Customer Data.
- We or third parties may make available third-party products or services, including, for example, Non-AMT Applications and implementation and other consulting services. Any acquisition by You of such Non-AMT Applications, products or services, and any exchange of data between You and any Non-AMT Application, product or service provider, is solely between You and the applicable Non-AMT provider. We do not warrant or support Non-AMT Applications or other Non-AMT products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified otherwise in an Order Form.
- If You install or enable a Non-AMT Application for use with a Service, You grant Us permission to allow the provider of that Non-AMT to access Your Customer Data as required for the interoperation of that Non-AMT Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Customer Data resulting from access by a Non-AMT Application.
- The Services may contain features designed to interoperate with Non-AMT Applications. To use such features, You may be required to obtain access to Non-AMT Applications from their providers and may be required to grant Us access to Your account(s) on the Non-AMT Applications. If the provider of a Non-AMT Application ceases to make the Non-AMT Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
Customer shall use the Service in accordance with the limitations set forth in this Agreement. The Repair360 Free Service is limited to a single device. The Order Form and SSW may establish the maximum number of Devices that may access and use the AMT Service. Customer shall use the AMT Service solely for its own internal business purposes. All other uses are expressly prohibited unless agreed to in writing by AMT. Customer shall not (i) license, grant, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service; (iii) modify or make derivative works based upon the Service; or (iv) create Internet “links” to the AMT Service or “frame” or “mirror” any content of the AMT Service on any other server or wireless or Internet-based device.
You acknowledge and agree that a breach or a threatened breach of this Agreement will result in great or irreparable harm to AMT for which there is no adequate remedy at law. Therefore, in the event of a breach or threatened breach by you of the provisions of this Agreement, AMT will be entitled to seek an injunction restraining you from violating the terms of this Agreement or in using any of the intellectual property, confidential information or trade secrets of AMT including, but not limited to SSW, AMT Service, Service and other products of AMT. Nothing herein will be construed as prohibiting AMT from pursuing any other remedies available to it for such breach or threatened breach or any unauthorized use of its products, including recovery of damages from You.
- Payment. All fees for the various AMT Service features and functions are set forth in the SSW and Order Form. AMT will submit an invoice to Customer on or about the first day of every month for the use of the AMT Service for that month, based on the features and functions Customer has selected. Pursuant to AMT Billing Policies set forth at https://amt.company/billing-policies and incorporated herein by this reference, Customer shall pay the invoiced amount within ten (10) days from the invoice date. The invoice may include unbilled fees for any prior months based on changes to the features, functions, the number of users/Devices, etc., requested by Customer and which commenced during the preceding month, prorated based on the date the change in service was activated. AMT may, at its discretion, increase the fee for any or all features and/or functions upon thirty (30) days’ notice to Customer. Any amounts due hereunder that are not paid when due shall be subject to interest on the unpaid balance at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum interest rate allowed under applicable law.
- Taxes. Fees and other charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only federal or state taxes based solely on AMT’s income.
- Billing Errors. If Customer believes that the Use Fees or other charges to Customer’s account are incorrect, Customer must contact AMT in writing within thirty (30) days of the date of the charge in question, to be eligible to receive an adjustment or credit, provided that no such belief shall relieve Customer of paying all fees on a timely basis as provided in Paragraph 6A and AMT Billing Policies.
7. Changes in Use of Software.
Customer may, from time to time, add or delete certain AMT Service features or functions or increase or decrease their usage or the number of users/Devices on which it is used, or make such other changes as may be permitted on the SSW, provided that certain changes may be subject to certain minimum levels of use or AMT’s approval. For any change initiated by Customer, AMT will notify Customer when that change has become effective.
The license and all other rights of Customer under this Agreement shall begin and end on the dates set forth in the SSW. If there is an initial term (“Initial Term”), this Agreement shall automatically be extended for the same period following the Initial Term and any extended term (“Term”) on a continuing basis unless one party gives the other written notice of termination at least thirty (30) days prior to the end of any Term.
Customer shall appoint one of its personnel or an outside service provider selected by Customer to act as the administrator of the AMT Service (“Administrator”), who shall be Customer’s point of contact with AMT and perform or assist in performing all of Customer’s duties and responsibilities under this Agreement.
10. Customer Data.
- Customer Ownership. Customer shall retain ownership of any Customer Data. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of Customer Data. AMT shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
- Data Backup and security. AMT shall use reasonable efforts to protect Customer Data, conduct regular periodic Customer Data backups, and a reasonably safe and secure location.
- Effect of Termination on Data. In the event, this Agreement is terminated (other than by reason of Customer’s breach), AMT will make available to Customer a file of the Customer Data within 30 days of termination if Customer makes a request in writing at the time of termination to firstname.lastname@example.org, which shall be confirmed by AMT Customer Service Representative. After that 30-day period, We will have no obligation to maintain or provide Customer Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited. Customer agrees and acknowledges that AMT has no obligation to retain the Customer Data, and may delete it, on or following the 31st day after termination. AMT reserves the right to withhold, remove and/or discard Customer Data, without notice, upon any breach of this Agreement by Customer, including, without limitation, Customer’s non-payment.
- Aggregation and Use of Data. AMT may extract and use information from Customer Data, in aggregated form only and in a form which does not specifically identify a Customer or a specific transaction (“Aggregated Data”) for the limited purpose of performing evaluations on the AMT Service and its various features and functions and developing best practices and lessons learned analyses.
11. Intellectual Property Rights.
AMT and/or its licensors own, all rights, title and interests, including all intellectual property rights, in and to (i) the Service, (ii) AMT Service and related products (iii) SSW, the AMT Website, materials and other related content (excluding Customer Data) and (iv) any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the AMT Service. In addition, all content published on the AMT Website, including, but not limited to, reports, presentations, written content, graphics, images, marks, logos, sound or video clips, and Flash or Java animation, are protected by AMT’s copyrights or trademarks or those of AMT’s partners or users.
12. 3rd-Party Sites Products and Service
The AMT Website may contain links to other Internet sites owned or operated by third parties. Customer’s use of each of those sites is subject to the conditions, if any, that each of those sites has posted. AMT has no control over sites that are not its own, and AMT is not responsible for any use of such sites, Malicious Code, or content on them. AMT’s inclusion on the AMT Website of any third-party content or a link to a third-party site is not an endorsement of that content or third-party site.
13. Termination or Suspension.
In addition to a termination, as provided in Paragraph 7, AMT may immediately terminate or suspend Customer’s use of the AMT Service, or terminate its account and this Agreement if (i) Customer fails to pay any fees, costs or any other charges when due, (ii) Customer fails to perform any of its other (non-payment) obligations under this Agreement and fails to remedy the breach within fifteen (15) days of being so notified; iii) Customer uses the Services in connection with persons located outside of the United States or (iv) In the event AMT reasonably believes that Customer’s use of the Services violates any applicable law, rule, regulation, code or ordinance. Customer will continue to be obligated to pay fees for the AMT Service during any period of suspension as set forth herein and pursuant to AMT Billing Policies. Termination will not relieve Customer from its obligation to pay fees or other charges or fees for the remaining Term. AMT may, in its sole discretion, reinstate any suspended or terminated AMT Service, provided that Customer must pay a reconnection fee, in addition to all unpaid fees and other charges and fees. AMT’s rights and remedies as set forth above shall be in addition to any other rights and remedies AMT may have at law, in equity or under this Agreement. Upon AMT’s termination of this Agreement or suspension of AMT Service as a result of any actions or omissions by Customer as set forth above, AMT shall have no obligation to refund to Customer any fees, charges or other fees previously paid.
15. Additional Customer Obligations.
- Customer shall furnish to AMT all true, accurate, current, and complete information, as needed by AMT to provide the Service.
- Customer shall be responsible for ensuring that no license granted pursuant to this Agreement is used without Customer’s authorization and shall not attempt to use any non-Enabled Devices with the Service.
- Customer shall be responsible, through the Administrator, for setting and modifying its users’ profiles and preferences for the Service, authorizing and terminating the use of individual licenses, uses and/or Devices and specifying the access rights of those individuals who Customer allows to use to Devices. The Administrator shall notify AMT if he/she needs to take a Device out of service and replace it with another one and the Administrator may do so only by contacting AMT.
- Customer shall be responsible for all activity occurring under its accounts and will comply with all applicable local, state, federal and foreign laws, treaties and regulations in connection with its use of the AMT Service, including without limitation, laws, and regulations governing data privacy, international communications and transmission of technical or personal data.
- Without limiting the foregoing, Customer shall not use the Service to:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal right of others;
- Publish, post, upload, e-mail, distribute, or disseminate (collectively, “Transmit”) any inappropriate, profane, defamatory, misleading, infringing, obscene, indecent, or unlawful content;
- Transmit files that contain Malicious Code, viruses, malware, corrupted files, or any other similar software or programs that may damage or adversely affect the protection of Customer Data, operation of another person’s computer, AMT’s sites, any software or hardware, or telecommunications equipment;
- Download any data or file as to which Customer has no legal right;
- Restrict or inhibit any other lawful and permitted user from using the AMT Website;
- Interfere with or disrupt AMT’s sites, servers, or networks;
- To probe, scan or test the vulnerability of the AMT Website or circumvent any security mechanism used by the AMT Website; or
- Take any action that imposes an unreasonable or disproportionately large load on Licensor’s infrastructure.
- Use the Services in any way that may violate any law, rule, regulation, code or ordinance or infringe any third party right.
- Use the Services outside of the United States.
- Frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation.
- Sell, resell, license, sublicense, distribute, rent or lease any, or include any Service in a service bureau or outsourcing offering.
- Access any Service in order to build a competitive product or service.
- You will use best efforts to prevent unauthorized access to or use of Services and notify Us promptly of any such unauthorized access or use.
- You represent and warrant that you have validly entered into this Agreement and have the legal power to do so on behalf of the entity benefitting from the use of the Service.
CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD AMT AND ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, AFFILIATES, SUPPLIERS, PARTNERS AND LICENSORS (COLLECTIVELY, “AMT PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, LOSSES, COSTS, AND EXPENSES, (INCLUDING ATTORNEYS’ FEES) INCURRED BY ANY AMT PARTY IN CONNECTION WITH ANY CLAIM, DEMAND, CAUSE OF ACTION, SUIT OR ACTION ARISING OUT OF CUSTOMER’S USE OF THE AMT SERVICE, AMT PRODUCT, SSW, AMT WEBSITE OR VIOLATION OF THIS AGREEMENT. CUSTOMER IS NOT REQUIRED TO INDEMNIFY AND HOLD AMT HARMLESS FOR THE SOLE NEGLIGENCE OF AMT.
ATM SHALL INDEMNIFY, DEFEND, AND HOLD LICENSEE HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, DAMAGES, DEMANDS, LOSSES, LIABILITIES, FINES, PENALTIES, COSTS AND EXPENSES, INCLUDING LEGAL FEES AND EXPENSES, ARISING OUT OF ANY THIRD PARTY CLAIMS THAT LICENSEE’S USE OF THE SOFTWARE PROGRAMS VIOLATE THE PATENT, COPYRIGHT, TRADEMARK TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
17. AMT Service Warranty.
AMT warrants and We warrant that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) the Purchased Services will not introduce Malicious Code into Your systems and (e) We will make customer support available to answer questions or concerns regarding the functionality of the Purchased Services during regular business hours 9am to 5pm Pacific Standard Time. For any breach of an above warranty, You must provide us written notice within 30 days and You agree that Your exclusive remedies are those described in Section 16. FOR ANY BREACH OF THE ABOVE WARRANTY, WE WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO US, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND OUR SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.
18. No Warranty & Exclusions.
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 16, AMT AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE AMT SERVICE OR ANY CONTENT. AMT AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES, MALICIOUS CODE OR OTHER HARMFUL COMPONENTS, (G) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WE WILL CORRECT ALL SERVICES ERRORS. THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. EXCEPT AS PROVIDED IN SECTION 16, ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY AMT AND ITS LICENSORS. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
19. Limitation of Liability.
- General Limitation. IN NO EVENT SHALL AMT’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY SUCH LIABILITY. IN NO EVENT SHALL AMT AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AMT SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE AMT SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE AMT SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AMT IS NOT RESPONSIBLE FOR ANY DAMAGES, LOSS, COSTS OR EXPENSES AS A RESULT OF ANY SERVICE OUTAGES THAT ARE CAUSED BY AMT’S MAINTENANCE OF ITS SERVERS OR THE TECHNOLOGY THAT UNDERLIES THE AMT WEBSITE, PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, FAILURES OF AMT’S SERVICE PROVIDERS (INCLUDING TELECOMMUNICATIONS, HOSTING, AND POWER PROVIDERS), COMPUTER VIRUSES, LABOR DISRUPTIONS, NATURAL DISASTERS OR OTHER DESTRUCTION OR DAMAGE OF CUSTOMER’S FACILITIES, ACTS OF NATURE, WAR, CIVIL DISTURBANCE, OR ANY OTHER CAUSE BEYOND AMT’S REASONABLE CONTROL.
- Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service
- Release for Beta Services and Repair360 Free Service. Notwithstanding anything to the contrary, You hereby release AMT from any liability or claims arising from Beta Services or the Repair360 Free Service. You acknowledge that each You are familiar with Section 1542 of the California Civil Code, which provides as follows:
- “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known to him or her, must have materially affected his settlement with the debtor.”
- You each hereby waive and relinquish all rights and benefits which You have or may have under Section 1542 of the California Civil Code, or the law of any other state or jurisdiction to the same or similar effect to the fullest extent that You may lawfully waive all such rights and benefits pertaining the Services.
- Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder in whole or in part, by operation of law or otherwise without the prior written consent of the other party, which consent shall not be unreasonably withheld. A party may reasonably withhold consent if the assignee fails or refuses to assume in writing its obligations under this Agreement. Notwithstanding the foregoing, AMT shall have the right to assign or transfer this Agreement without consent of Customer to any parent or subsidiary of AMT, any entity which results from a merger or consolidation with AMT or any person or entity that acquires all or substantially all the assets of AMT, provided such person or entity, in the case of an assignment, assumes all the obligations of AMT under this Agreement. Any assignment in contravention of this Section shall be null and void.
- No Third Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any person or entity other than the parties and their respective successors and permitted assigns.
- Severability. In the event that any provision hereof is found invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the remainder of this Agreement shall remain valid and enforceable according to its terms.
- Waiver. The failure of a party to insist upon strict performance of any provision of this Agreement or to exercise any right arising out of this Agreement shall neither impair that provision or right nor constitute a waiver of that provision or right, in whole or in part, in that instance or in any other instance.
- Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party is, nor will be deemed to be, an agent or legal representative of the other party, and neither party can assume or create any obligation, liability, representation, warranty or guarantee, express or implied, on behalf of the other party for any purpose whatsoever.
- Use of Customer Name. Customer agrees that AMT may issue a press release announcing Customer’s execution of this Agreement and may include Customer’s name as part of any general lists of AMT customer names in AMT’s marketing material, website and other press releases. Any other use of Customer’s name by AMT shall require the prior written approval of Customer, which approval shall not be unreasonably withheld or delayed.
- Force Majeure. AMT shall not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation, acts of God, acts of war or terrorism, civil unrest, earthquakes, fires, loss of data, unauthorized actions of third parties, governmental actions and equipment, telecommunications, power or electrical failures.
- U.S. Government End Users. The AMT Service and related documentation, therefore, are “Commercial Items,” as that term is defined in 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to all U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. Unpublished-rights reserved under the copyright laws of the United States.
- Notices. Unless expressly set forth otherwise in this Agreement, all notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed given or sent when deposited, as certified mail or for overnight delivery, postage and fees prepaid, in the United States mails; when delivered to Federal Express, United Parcel Service, DHL WorldWide Express, or Airborne Express, for overnight delivery, charges prepaid or charged to the sender’s account; when personally delivered to the recipient.
- Integration. This Agreement constitutes the entire agreement between AMT and Customer with respect to the subject matter hereof and supersedes all prior and contemporaneous representations, discussions, negotiations, communications, proposals, agreements, and understandings, whether written or oral, between AMT and Customer with respect to the subject matter hereof. This Agreement cannot be modified or supplemented except by a written instrument expressly stated for such purpose and executed by AMT and Customer.
- Jurisdiction, Venue, Governing Law, Arbitration and Attorney Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. The Parties agree irrevocably to the jurisdiction and venue of the Superior Court for the County of Orange for any and all controversy arising under this agreement. Notwithstanding the foregoing, any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall, except as provided in Paragraph 20L below, be resolved exclusively by arbitration in Orange County, California, administered by JAMS before a single arbitrator in accordance with its Commercial Arbitration Rules and Procedures, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall have no authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this agreement. Any claim by either party shall be brought, if at all, within one (1) year of the date that the claim accrues. In the event any arbitration or other proceeding is brought by either party arising out of or relating to this Agreement, the prevailing party shall be entitled to recover from the other party all costs, attorneys’ fees, expert and professional fees and other expenses incurred by the prevailing party in such arbitration or proceeding.
- The exception to Arbitration. The parties understand and acknowledge that one party’s breach or default of this Agreement (“Breaching Party”) may cause irreparable harm to another party (“Nonbreaching Party”) and that the Nonbreaching Party may not have an adequate remedy at law. In such circumstances, the Nonbreaching Party shall have the right to any and all equitable relief which may be available as a consequence of such a breach or default. The Nonbreaching Party shall, therefore, have the right to seek and obtain such equitable relief in a court, notwithstanding the obligation of the parties to resolve any other disputes they may have in arbitration as provided Paragraph 20K.
- Construction. Each party and its counsel have participated in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.
- Remedies Cumulative. All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.
- UCITA and Third Party Contractors. The Uniform Computer Information Transactions Act does not apply to this software as a service agreement or orders placed under it. You understand that Our business partners, including any third party firms retained by You to provide computer consulting services, are independent of Us and are not Our agents. We are not liable for nor bound by any acts of any such business partner unless the business partner is providing services as Our subcontractor on an engagement ordered under this software as a service agreement.
- Survival. The following sections shall survive termination of this Agreement, Section 10, 11, 12, 15, 17, 18 and 19.