These Standard Terms and Conditions, together with the Service Level Agreement attached hereto as Appendix 1, are incorporated into the Order Form separately executed by Amper Technologies, Inc., a Delaware corporation, and the “Customer” signatory to such Order Form, and collectively form the “Agreement” as defined and described in the Order Form.
Definitions. The following terms used:
a. “Authorized Users” shall mean and include each individual authorized to use the System in accordance with the terms of this Agreement.
b. “Implementation Services” shall mean each of the following services to be provided by Amper hereunder: (i) providing shipping of System Components to Customer’s Site; (ii) providing System Components installation; (iii) overseeing the installation team; and (iv) providing onsite training to use the System in accordance with Amper’s standard and customary practice.
c. “Services” shall mean the Implementation Services and other services, if any, described in the applicable Order Form.
d. “Site” shall mean each facility of Customer that will be monitored through use of the System and/or specific machines within a facility under surveillance, as specifically designated in each Order.
e. “Software” shall mean Amper’s software platform as included within the System and further described in the Order(s), including any specifications set forth herein and/or within any Order (“Specifications”).
f. “System” shall mean, collectively, the Software and each of the System Components.
g. “System Components” shall mean those components and hardware described within each Order.
1. Services; System.
a. Services. Customer hereby purchases from Amper, and Amper agrees to provide to Customer, the Services described in any Order Form or Order which is signed by both parties. Additional Services may be added in the future by attaching to this Agreement one or more Orders executed by both parties. Customer shall provide all necessary assistance such that Amper can complete the Implementation Services and other Services in a timely manner. Each Order will be subject to all of the terms and conditions set forth in this Agreement.
b. License. In addition to the foregoing, upon payment of the fees described in the Order(s), Customer hereby licenses access to and use of the Software and System on a software-as-a-service basis as described herein and in any Order. Amper will: (i) make the Software and System available to Customer on a revocable, non-exclusive, non-transferable, limited license basis for the purposes described in the Order(s); and (ii) host, or engage one or more third parties to host, the backend of the Software in accordance with Amper’s customary practice. Amper may, from time to time, update or modify the Software, release new versions of the Software or create new modules related thereto or included therein. Customer shall only provide or allow access to the Software or System to Authorized Users. Customer shall educate Authorized Users regarding the System and require that Authorized Users utilize the System for its intended purposes.
c. Implementation. As soon as reasonably practical following execution of this Agreement and the applicable Order(s), the parties shall prepare a mutually agreed upon project plan. The project plan shall define the activities required to install and implement the System at the Site(s). The parties shall incorporate into the project plan detailed activities that may not be Amper obligations but which are required to successfully install and implement the System within the Customer environment and organization.
2. Representations and Warranties. Each party represents and warrants that: (i) it has the authority to enter into this Agreement and perform the services required of it hereunder; and (ii) each party will comply with all applicable laws and regulations in carrying out its responsibilities hereunder. In addition, Amper represents and warrants that (x) it will perform all services hereunder in a professional manner consistent with industry practices, and (y) it will adhere to general industry standards in storing and protecting sensitive data provided by Customer.
3. Fees. In consideration of Amper providing the Services hereunder and licensing access to the System, Customer shall pay to Amper the fees specified in each Order. Fees which are not timely paid shall accrue late charges from the date such payment was due until the date paid at a rate equal to the lesser of 10% per annum or the maximum rate permitted by applicable law. Customer may not offset or withhold fees due under this Agreement for any reason, and Customer agrees to reimburse Amper for all reasonable costs (including attorney’s fees) incurred in collecting past due fees owed by Customer.
a. Termination. Either party shall be entitled to terminate this Agreement and all Orders at any time in the event the other party (i) declares bankruptcy, or (ii) breaches any of its material obligations hereunder (including, without limitation, payment obligations) and fails to cure such breach within forty-five (45) days from the date of receipt of written notice of such breach.
b. Effect of Termination. Upon any termination of this Agreement or any Order, Customer shall (i) immediately pay all fees and reimburse Amper for all expenses due and owing hereunder and under the applicable Order, and (ii) immediately cease accessing and/or otherwise making any use of the Software and any and all copies thereof, and promptly return to Amper all System Components at Customer’s expense. Sections 5 through 11 of this Agreement shall survive any termination of this Agreement.
5. Intellectual Property.
a. Ownership. All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. Amper shall retain sole ownership over the System, the Software and all other software and/or other intellectual property utilized by Amper in performing Services hereunder (including, without limitation, any improvements or enhancements to any such software platform which result from performance of the Services or otherwise occur during or subsequent to the term of this Agreement). Any data provided by Customer to Amper in connection with Amper’s performance of the Services shall remain owned by Customer, it being understood that Amper shall be entitled, as part of the Services, to use such data for purposes of performing Services hereunder and to maintain such data within Amper’s database for purposes of making Amper’s service available (which includes, without limitation, using such data following termination of this Agreement for benchmarking purposes so long as such data is not personally identifiable back to the Customer or any individual). Each party hereby licenses use of its names and trademarks to the other party to the limited extent necessary for such party to carry out its responsibilities hereunder during the term of this Agreement.
b. Restrictions. Customer shall: (i) ensure that all Authorized Users comply with all terms and conditions of this Agreement and each Order; (ii) not permit any person or entity, other than the Authorized Users, to use or gain access to the System or any portion thereof and provide reasonable security devices to protect against unauthorized use or access thereto; (iii) not rent, lease, sublicense, distribute, transfer, copy or modify the System or any System Component thereof; (iv) only use the System for its own internal business purposes at the Site(s) set forth in the applicable Order and not in the operation of a service bureau or for the benefit of any other person or entity; (v) not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the Software or any portion of the System; (vi) not adapt the System in any way or use any System Component to create a derivative work; (vii) not remove, obscure or alter any proprietary notices, trademarks or other proprietary rights notices of Amper or any third party found, affixed or contained in or on any System Component; (viii) not use the System for any illegal, obscene, offensive or immoral purpose, or to transmit communications described in 47 U.S.C. Section 223(b); (ix) upon Amper’s request, provide Amper with accurate and complete registration information with respect to Customer’s use of the System (including the identity of Customer’s Authorized Users) and to promptly update such information as changes occur. Any other software included in the System is licensed subject to the additional terms of the applicable license, all of which are incorporated herein by reference.
c. Indemnification. Amper shall indemnify, defend and hold harmless Customer from and against any and all third party lawsuits alleging that the System, when accessed and used by Customer within the scope of this Agreement and each Order (and excluding claims based on use of the System in combination with other non-Amper software or intellectual property, any changes or modifications to the System made by any party other than Amper, and/or Customer’s failure to implement changes recommended by Amper), infringes the U.S. patent, trademark or copyright of any third party; provided that Customer notifies Amper in writing within ten (10) days of learning of such claim and promptly tenders control of the defense and settlement of any such claim to Amper with Amper’s choice of counsel. In the event any court of competent jurisdiction determines that the System infringes a third party’s U.S. intellectual property rights as described above, Amper may, in its sole discretion, either (i) procure for Customer the right from such third party to permit Customer to continue to use the System, (ii) replace or modify the System such that it becomes non-infringing, or (iii) if Amper determines that the options described under subsections (i) and (ii) above are not practicable, terminate this Agreement and/or suspend access to the System. This Section 5(c) states Amper’s sole responsibility and obligation, and Customer’s sole and exclusive remedy, for any infringement claim.
6. Confidentiality. Each party agrees to treat as confidential all non-public information of the other party, not to use such confidential information for any purpose other than to the limited extent necessary to perform under this Agreement and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by the other party, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. The parties agree and acknowledge that neither will have any obligation to keep confidential any information that: (A) is known to the receiving party prior to receipt from the disclosing party; (B) becomes known (independently of disclosure by the disclosing party) to the receiving party from a source other than one known by receiving party to have an obligation of confidentiality to the disclosing party; (C) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (D) the receiving party can demonstrate was developed by the receiving party independently of and without reference to any confidential information disclosed to it by the disclosing party. The parties hereby agree that the terms set forth in this Agreement constitute confidential information of both parties and as such, neither party will disclose such terms to any third party other than such party’s legal counsel and/or potential acquirers of such party.
7. Disclaimer. Except as explicitly set forth herein, neither party, nor either party’s employees, affiliates, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) uptime or downtime, or (c) as to the business results that may be obtained by the other party by entering into this Agreement. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR (I) ESTABLISHING AND MAINTAINING AN INTERNET CONNECTION SUFFICIENT FOR THE SYSTEM TO FUNCTION PROPERLY AND/OR NECESSARY TO ACCESS AND USE THE SOFTWARE, AND (II) VERIFYING ANY OUTPUT FROM USE OF THE SYSTEM IF CUSTOMER INTENDS TO USE OR RELY ON SUCH OUTPUT FOR BUSINESS PURPOSES. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND/OR SYSTEM MAY BE DOWN OR INACCESSIBLE FROM TIME TO TIME, INCLUDING FOR MAINTENANCE; PROVIDED, THAT AMPER OFFERS THE SERVICE LEVEL AGREEMENTS ATTACHED HERETO. CUSTOMER SHALL FOLLOW PROPER BACK-UP PROCEDURES FOR ANY OTHER PROGRAMMING AND ALL DATA TO PROTECT AGAINST LOSS OR ERROR RESULTING FROM THE USE OF ANY SYSTEM COMPONENT OR THE ENTIRE SYSTEM.
8. Limitation on Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDING CLAIMS ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND/OR INDEMNIFICATION OBLIGATIONS HEREUNDER, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ANY CLAIM HEREUNDER, RELATING TO THIS AGREEMENT OR OTHERWISE SHALL NOT EXCEED THE FEES PAID TO AMPER DURING THE 6-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
9. Force Majeure. Excluding payment obligations hereunder, neither party shall be liable to the other party for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies or power
10. Governing Law. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles. Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by the appropriate court located solely and exclusively in Cook County, Illinois. Customer agrees to such exclusive jurisdiction in Cook County, Illinois, and waives any jurisdictional claims in respect thereto (including, without limitation, forum non conveniens). In any such proceeding, the substantially prevailing party shall be entitled to reimbursement by the non-prevailing party for all attorneys’ fees expended in such matter
11. Miscellaneous. Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. Amper shall be entitled to subcontract various of the Services to be performed hereunder to third parties, it being understood that Amper shall be remain responsible for performance hereunder. Amper tracks the usage and behavior of its customers to optimize experience and quality of service. This Agreement supersedes all prior written or oral agreements between the parties regarding the subject matter hereof (including any contradictory or additional language in any purchase order). Customer shall be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based solely upon Amper’s income derived hereunder. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchisor, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement may be executed in counterparts and by facsimile or scanned electronic signature, each of which shall constitute originals and all of which, when taken together, shall constitute the same original. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by either party other than to an entity acquiring substantially all of its business and assuming all of its obligations. Any notice pursuant this Agreement shall be deemed effective when delivered in person, upon receipt of a facsimile to the respective fax numbers listed on the signature page of this Agreement (or to such different facsimile number as either party may designate in writing to the other pursuant to this paragraph from time to time) or one day after sending such notice to the address listed below by reputable overnight courier with confirmation of next-day receipt. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.
Amper shall provide support and training services in accordance with the terms and conditions of this Service Level Agreement:
1. Error Correction
a. Severity Levels: For purposes of this Service Level Agreement, “Error” means any defect or malfunction in the Software that prevents the Software from functioning in material conformity with the specifications set forth within the Agreement and Orders, provided that Amper must be able to replicate any such defect or malfunction The following table shall be used for classifying Errors:
b. Response Times: Amper provides the following support based upon the Severity Level of Error:
2. Exclusions: Amper is not required to provide any support under this SLA directly related to Errors attributable to: (i) Customer’s failure to implement all updates and upgrades provided by Amper to Customer; (ii) Errors caused by Customer’s or any user’s equipment, Internet connection, cellular connection services; or (iii) use of the Software for a purpose other than the intended purpose of the Software.
3. Downtime: In the event that Downtime (as defined below) is greater than (i) 1.5% during any calendar month but at or less than 2.5% during such month (any such month experiencing Downtime being referred to as a “Downtime Month”), Customer shall receive a credit against future fees due and owing under the applicable Order equal to 5% of the fee amount payable for the Downtime Month in connection with the portion of the Software experiencing Downtime, (ii) 2.5% during any calendar month but at or less than 5% during such month, Customer shall receive a credit against future fees due and owing under the applicable Order equal to 10% of the fee amount payable for the Downtime Month in connection with the portion of the Software experiencing Downtime, and (iii) 5% during any calendar month, Customer shall receive a credit against future fees due and owing under the applicable Order equal to 15% of the fee amount payable for the Downtime Month in connection with the portion of the Software experiencing Downtime. Credits shall only be issued to the extent Customer notifies Amper in writing of any Downtime no later than 10 days following the expiration of the applicable Downtime Month. “Downtime” shall be defined as circumstances where the Software is not, in all material respects, accessible to Customer for reasons other than (i) malfunctions or defects in any computers, servers, software, websites, equipment or other systems of Customer, (ii) scheduled downtime for routine maintenance during off-peak hours, (iii) general Internet outages, and/or (iv) force majeure events or other events beyond Amper’s reasonable control. The foregoing credits shall be Customer’s sole and exclusive remedy in the event of any Downtime.
4. Device Moving Policy: Though this is not recommended, Amper allows up to 10% of Customer devices to be moved per calendar year. This provision typically accommodates special situations where machines are decommissioned. If the Customer would like to move additional machines than the above allowance, there is a one-time $400 fee for each device moved.
1. When you opt-in to the alert service, we will send you an SMS message to confirm your signup. Amper alerts can be configured to send timely notifications about what is happening in real-time on your factory floor.
2. You can cancel the SMS service at any time. Just text “STOP” to ##### . After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.
3. If at any time you forget what keywords are supported, just text “HELP” to ##### . After you send the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe.
4. We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). ***Carriers are not liable for delayed or undelivered messages***
5. As always, message and data rates may apply for any messages sent to you from us and to us from you. Your message frequency will be dependent on your alert configuration, but you can expect at least 2-4 messages day. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For all questions about the services provided by this short code, you can send an email to firstname.lastname@example.org