Amberflo Platform Agreement

This Amberflo Platform Agreement (“APA”) governs any usage-based billing, metering and related services (“Services”) that the organization or entity signing below (the “You” or “Your”) purchase directly from Amberflo.io, Inc. (“Amberflo”). This APA, the Order Form, and any other incorporated terms comprise the complete understanding between the parties on the subject matter (“Agreement”).

1. SERVICES

1.1 Ordering. During the term set forth in the Order Form, Your personnel (“Users”) may access and use the Amberflo’s platform to use the usage-based billing and metering services identified in the Order Form (“Services”) only for Your internal business purposes. You will pay the fees for the Services in accordance with the payment terms stated in the Order Form. Except as otherwise stated in this APA or the Order Form (if applicable), Your purchases are non-cancelable and payment for Services is non-refundable. You will pay Amberflo for all applicable sales tax, VAT, GST, use tax, or similar transaction taxes imposed on Your purchase of Services, unless You provide Amberflo with a valid tax exemption certificate. You will have no liability for taxes that are imposed on Amberflo that are measured by Amberflo’s net or gross income.

1.2 The Services. Amberflo will provide Users with access to the Services in accordance with the Agreement. Depending on what You purchase, Services generally include access to the Amberflo’s hosted “Platform” that displays Your metering and/or billing activity. You, or Amberflo at Your direction, will provision an “Administrator” account for Users. Administrators may authorize and deactivate a User’s access to the Services. You will immediately notify Amberflo if You know or reasonably suspect that any account credentials have been compromised or of any unauthorized use of Your account. Depending on the types of access rights the Administrator grants Users, Users may be able to subscribe or unsubscribe for Services and delete, copy, or view Your Data. Amberflo is not responsible for the internal management or administration of Your use of the Services. Amberflo at any time may update or modify the Services provided it will not materially decrease functionality of the Services.

1.3 Restrictions. The Platform may only be accessed and used by Your Users. You are responsible for any the use of the Service by Your Users and their compliance with this Agreement. You, on behalf of itself and Your Users, agree not to: (1) use the Service other than as authorized in the Agreement; (2) modify, decompile, decode, or reverse engineer the Service,  (3) create derivative works based on the Service; (4) interfere with or disrupt the integrity or performance of the Service, (5) use the Service or any other Amberflo Confidential Information to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Service, or (6) deactivate, impair, or circumvent any security or authentication measures of the Service. You will not provide access to the Services to any third party, resell or sublicense it, except that You may allow Your Affiliates to access and use the Services if You are fully liable for Your Affiliates’ use of the Services and compliance with the Agreement (each such Affiliate also “You” for the purpose of this Agreement). Without undue delay, You will notify Amberflo upon learning of any unauthorized use of the Services. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity where “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

2. DUTIES

2.1 Data Protection. Amberflo’s Platform is architected so that it can provide the Services without processing any data that relates to an identified or identifiable individual or household (“Personal Data”). If you decide to provide Amberflo with Personal Data (e.g., usually Your end-customer’s name that you decide not to anonymize), then the terms of Amberflo’s Data Processing Agreement with Standard Contractual Clauses available at https://www.amberflo.io/legal/dpa is made a part of this APA.

2.2 Compliance with Laws. Amberflo and You will comply with all applicable Data Privacy Laws and all international, federal, state, provincial and local laws relating to export and bribery. If any variation to the Agreement between the parties is required to maintain compliance with changes to Data Privacy Laws, the parties will negotiate in good faith necessary variations to the Agreement to address changes. “Data Privacy Laws” means applicable national, federal, state and provincial laws relating to data privacy, the protection of Personal Data, and the cross-border transfer of Personal Data (e.g., to the extent applicable, the CCPA and GDPR), excluding any law that requires data to be stored in a specific country.

2.3 Third-Party Services. Depending on the Service, You may decide to interact with, access or use compatible third-party services, content or solutions (“Third Party Services”) like SDKs. Amberflo does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors, or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services. You are solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Your use of the Third-Party Services in connection with the Services.

2.4 Data Backup and Download. Amberflo will provide daily backups of Your Data. For most Services, the Platform will allow You to download Your metering and/or billing data. In the event of any loss or corruption of Your Data, Amberflo shall use commercially reasonable efforts to restore Your Data that has been lost or corrupted from the latest backup of Your Data. Because You have the ability to download data from the Platform, Amberflo’s efforts to restore lost or corrupted Your Data pursuant to this Section is Amberflo’s sole liability and Your sole remedy in the event of any loss or corruption of Your Data. Amberflo shall not be responsible for any loss, destruction, misappropriation, alteration, unauthorized disclosure or corruption of Your Data caused by You or any third party or Third Party Service. “Your Data” means data, information, and content provided by You, which is input into and/or generated by the Platform from Your data (e.g., metering and billing output generated through Your use of the Services).

3. CONFIDENTIAL INFORMATION

3.1 Definition. The term “Confidential Information” means any information disclosed under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by discloser at the time of disclosure and confirmed in writing to recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by recipient to be confidential (e.g. pricing, product plans, non-public Personal Data, etc.). Confidential Information does not include any portion of the information that recipient can prove (a) was rightfully known to recipient before receipt from discloser; (b) was generally known to the public on the Effective Date; (c) becomes generally known to the public after the effective date of the Agreement through no fault of recipient; (d) was received by recipient from a third party without any confidentiality obligation; or (e) was independently developed by recipient without breach of this Section 3.

3.2 Limited Use and Non-Disclosure. Recipient will (a) use Confidential Information only for the purposes of furthering the business relationship between the parties; (b) protect Confidential Information using the same degree of care it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; or (c) not disclose Confidential Information to any third party except (i) to Affiliates or employees, consultants, and agents who (i) have a need to know it in order to carry out their obligations under the Agreement, and (ii) are under written confidentiality and non-use obligations at least as restrictive as those stated in this APA or (ii) as required by law.

4. INTELLECTUAL PROPERTY RIGHTS

As between Amberflo and You, You own all worldwide right, title and interest in and to Your Data, including all worldwide Intellectual Property Rights (“Your IP”) . Amberflo and its licensors own all worldwide right, title and interest in and to the Amberflo Service and the Platform, including all worldwide Intellectual Property Rights (“Amberflo IP”). Except as expressly set forth in the Agreement, no rights to any Amberflo IP or Your IP is granted to the other party. You are not obligated to provide Amberflo with any suggestions, enhancement requests, or other feedback about the Services or related technology. However, if Your personnel provide any feedback to Amberflo, Amberflo may use and modify it without any restriction or payment. Provided You are not identified or capable of being re-identified as the source of the data, You agree that Amberflo may use and analyze Your Data to provide, improve, and support its products and services. “Intellectual Property Right(s)” means worldwide patent rights (including, without limitation, patent applications and disclosures), trademarks, copyrights, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

5. TERM AND TERMINATION

5.1 Term. This APA is effective on the date the first Order Form is fully executed by You and Amberflo (“Effective Date”) and remains in effect until all Order Forms under this APA are terminated or expire.

5.2 Termination and Suspension. Either party may terminate this APA or an Order Form if the other party materially breaches the Agreement and fails to cure the breach within 30 days after receiving notice of the breach. Amberflo may suspend Your access to the Services if You are in breach of the Agreement and have received written notice describing the breach and the suspension will continue for as long as reasonably necessary for You to remedy the breach.  In the event Your Services renew on a monthly basis and You have not incurred any fees for three (3) consecutive months under any applicable Order Form, Amberflo may terminate this Agreement and Your account immediately upon notice to You.

5.3 Effect of Termination. Except if You terminate for Amberflo’s uncured material breach under Section 5.2, termination of this APA or an Order Form will not relieve You from Your obligation to pay Amberflo any fees stated in an Order Form. If You terminate this APA or an Order Form because of Amberflo’s uncured material breach, Amberflo will refund a pro-rata share of any prepaid fees under the applicable Order Form for the Services subject to the default. After termination or expiration of the APA or an Order Form, (a) Amberflo will continue to make Your Data that was available in the Platform for download in a format offered by Amberflo for up to thirty (30) days, (b) Amberflo will delete all applicable data within 60 days and may take steps to prevent the data flow from You to Amberflo, and (c) You will disable all data feeds to Amberflo within 72 hours or else all usage will be billed at the Excess Use Fee after being notified that the data feeds remain in place. Termination of an Order Form does not terminate this APA unless no other Order Forms are in effect. Termination of this APA will result in the immediate termination of all Order Forms. Sections 3, 4, and 6-9 of this APA will survive termination.  

6. LIMITED WARRANTY; DISCLAIMER

Amberflo makes no representation or warranty about the Services, including the results obtained from or the conclusions drawn from the use of Services or that the Services will be uninterrupted or error-free. To the fullest extent permitted under applicable law, Amberflo disclaims all express and implied warranties, including any implied or statutory warranty, any implied warranty of title or non-infringement (since Amberflo indemnifies for IP infringement), merchantability or fitness for a particular purpose.

7. INDEMNIFICATION

7.1 Indemnification Scope. Amberflo will defend You, Your Affiliates, and Your respective directors, officers and employees (“Your Indemnified Parties”) from and against all third party claims alleging (a) the Services infringe, misappropriates or otherwise violates any third party’s Intellectual Property Right, (b) Amberflo’s willful misconduct or fraud, or (c) the Service violates applicable Data Privacy Laws (“Your Indemnified Claims”). Amberflo will indemnify and hold Your Indemnified Parties harmless against any damages and costs awarded against Your Indemnified Parties or agreed in settlement by Amberflo (including reasonable attorneys’ fees) resulting from Your Indemnified Claims. You will defend and indemnify Amberflo, its Affiliates, and their respective directors, officers and employees (“Our Indemnified Parties”) from and against all third party claims alleging (x) Your Data infringes, misappropriates or otherwise violates any third party’s Intellectual Property Rights; (y) Your willful misconduct or fraud, or (z) Your violation of applicable Data Privacy Laws (“Our Indemnified Claims”). You will indemnify and hold Our Indemnified Parties harmless against any damages and costs awarded against Our Indemnified Parties or agreed in settlement by You (including reasonable attorneys’ fees) resulting from Our Indemnified Claims. Amberflo will have no liability under this Section to the extent that any third-party claims are based on the combination, operation or use of the Services with equipment, application(s), or data not supplied by Amberflo or its vendors (e.g., Third Party Services) if a claim would not have occurred but for such combination, operation or use.

7.2 Indemnification Procedures. Each party will promptly notify the other in writing of any third-party claim. The indemnifying party will (a) control the defense of the claim; and (b) obtain the other party’s prior written approval of the indemnifying party’s settlement or compromise of a claim. The indemnified party will (y) not unreasonably withhold or delay its approval of the request for settlement or compromise; and (z) assist and cooperate in the defense as reasonably requested by the indemnifying party at the indemnifying party’s expense.

8. LIMITATION OF LIABILITY

In this Section, “liability” means any liability, whether under contract, tort, or otherwise, including for negligence.

8.1 General Limitations on Liability. Subject to section 8.2 (Exceptions to Limitations):

(a) neither party will have any liability arising out of or relating to the Agreement for: (1) indirect, special, incidental or consequential losses (whether or not foreseeable or contemplated by the parties at the Effective Date); (2) exemplary or punitive damages; or (3) the other party’s lost revenues, profits, or data; and

(b) each party's aggregate liability arising out of or relating to the Agreement will not exceed the greater of the amount paid or payable to Amberflo under the applicable Order Form for the 12 months preceding the subject claim.

8.2 Exceptions to Limitations. Nothing in this Agreement excludes or limits either party’s liability for: (a) breach of confidentiality obligations under Section 3, (b) the indemnification obligations under Section 7, or (c) matters for which liability cannot be excluded or limited under applicable law.

9. DISPUTE RESOLUTION

If You are domiciled in the United States: This Agreement and all matters arising out of or relating to this Agreement is governed by California law, without regard to conflict of law, and each party irrevocably consents to exclusive jurisdiction over all claims and disputes between the parties, as follows: (a) if Amberflo is the plaintiff, the state and federal courts located in the state and county of Your address identified in the Order Form, or (b) if You are the plaintiff, the Superior Court of Santa Clara County, California, and federal court in the Northern District of California.  

If You are domiciled outside of the United States: Any unresolved dispute arising out of or in connection with this Agreement shall be finally resolved by arbitration with one arbitrator conducted in English under the Rules of Arbitration of the International Chamber of Commerce that are made a part of this Agreement. Either party can obtain temporary restraining orders, preliminary injunctions, and other similar relief in a court of competent jurisdiction when necessary to preserve status quo or prevent injury pending resolution of the dispute on its merits by arbitration. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of (without regard to conflict of law) and the location of the arbitration will be, as follows:

10. MISCELLANEOUS

Neither party will assign the Agreement in whole or in part without the other party’s prior written consent (which consent will not be unreasonably denied, delayed or conditioned), except to an Affiliate or a successor that is made in connection with a merger or sale of all or substantially all of a party’s assets or stock. Any attempted assignment in violation of this restriction is void. The Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. If a conflict exists between any of the terms in the (i) DPA and (ii) either this APA or the Order Form, then the DPA will govern. If a conflict exists between any of the terms in the Order Form that has been signed by both parties and the APA, then the Order Form will govern. Neither party relies on any undertaking, promise, assurance, statement, representation, warranty or understanding of any person relating to the subject matter of the Agreement, other than as stated in the Agreement. Notices will be provided in writing and delivered by commercial overnight or next day courier to the address of the other party stated on the Order Form. The Agreement does not create a partnership, agency relationship, or joint venture between the parties. Neither party has the power or authority to bind the other or to create any obligation or responsibility on behalf of the other. Under no circumstances will any employee of one party be deemed to be the employee of the other. If any provision of the Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to give effect to the parties’ intentions and the remaining provisions will not be affected. The parties may amend the Agreement only in a written amendment signed by both parties. This APA can be executed electronically and in counterparts, each of which is deemed to be an original and together comprise a single document. Each party represents and warrants that the individual binding a party under this APA is authorized to do so.