Last updated: October 9, 2026
Upon execution of a Sales Order Form (“SOF”) by authorized representatives of both parties (including by electronic signature), a binding contract shall be created between Amego, Inc., a Delaware corporation (“Amego”) and the customer entity identified in the SOF (“Customer”) (each, a “Party” and together, the “Parties”), solely on the terms and conditions contained herein (these “Terms and Conditions”), the terms contained in the applicable SOF, and the documents expressly incorporated herein by reference, including the Amego Data Processing Addendum (the “DPA”) (collectively the “Agreement”).
1. Definitions.
(a) “Affiliate” means any entity which 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.
(b) “Customer Data” has the meaning provided in Section 4(b).
(c) “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
(d) “Personal Data” has the meaning provided in the DPA.
(e) “Sensitive Data” means (i) Social Security number, passport number, driver’s license number, taxpayer identification number or other government-issued identifier; (ii) financial account information, including bank account and routing numbers, payment card numbers and related access or security codes, and “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act of 1999, as amended; (iii) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, or data revealing sex life or sexual orientation; (iv) Personal Data of children under the age of sixteen (16), or such higher age as is required under applicable law for valid consent; (v) precise geolocation data; or (vi) health or medical information, including “protected health information” as defined under the U.S. Health Insurance Portability and Accountability Act of 1996, as amended.
(f) “Services” has the meaning provided in Section 2(a).
(g) “Users” means individuals who are authorized by Customer to use the Services, or for whom subscriptions (if applicable) to the Services have been ordered, and who have been supplied login credentials (including via single sign-on) by Customer (or by Amego at Customer’s request). Users may include but are not limited to Customer’s employees, consultants, contractors and agents, and third parties with which Customer transacts business.
(h) “Customer” means the company or legal entity identified in the SOF on whose behalf this Agreement is executed. If Customer is an agency purchasing Services on behalf of its clients, the term “Customer” shall include such clients, provided that Customer shall remain responsible for such clients’ compliance with Customer’s obligations under this Agreement, for any breach of those obligations by such clients, and for payment for purchases of the Services on behalf of such clients.
(i) “Personnel” means a Party’s officers, directors, owners, employees, agents, independent contractors and subcontractors.
2. The Services.
(a) Services. Amego will perform certain services and create and provide certain deliverables, as more particularly described in an SOF or multiple SOFs, which will be entered into from time to time and, upon execution by the Parties, will be incorporated and made part of this Agreement (the “Services”). No obligation to provide any Services shall be incurred by Amego until such time that an SOF has been executed by authorized representatives of both Parties. The existence of these Terms and Conditions shall not be construed as imposing any obligation upon Amego to agree to an SOF or to otherwise perform any Services for Customer.
(b) Change Orders. The Parties acknowledge and agree that during the term of the Agreement, the Services may be modified or expanded from time to time upon a written change order executed by authorized representatives of the Parties expressly referencing this Agreement (each, a “Change Order”).
(c) Subcontractors/Consultants. Customer acknowledges and agrees that Amego may use subcontractors and consultants to perform the Services to be provided under this Agreement. Amego shall remain responsible for the performance of its subcontractors and consultants and for their compliance with the applicable terms of this Agreement.
3. Non-Amego Services.
Amego or third parties may from time to time make available to Customer third-party products or services, including but not limited to non-Amego applications and implementation, customization, and other consulting services (“Non-Amego Services”).
(a) Disclaimer. Amego does not endorse, warrant or support Non-Amego Services. If Customer chooses to use any Non-Amego Service in conjunction with the Services, Customer grants Amego permission to allow the Non-Amego Service and its provider to access Customer Data as required for the interoperation of that Non-Amego Service with the Services. Any use of Non-Amego Services is solely between Customer and the applicable provider, and Customer’s indemnification obligations with respect to Non-Amego Services are set forth in Section 9.
(b) Integration with Non-Amego Applications. The Services may contain features designed to interoperate with non-Amego applications. To use such features, Customer may be required to obtain access to such Non-Amego applications from their providers. If the provider of any such Non-Amego application ceases to make the Non-Amego application available for interoperation with the corresponding Amego features on reasonable terms, Amego may cease providing such Amego features, and will use commercially reasonable efforts to provide Customer with advance notice thereof, and Customer will not be entitled to any refund, credit, or other compensation.
4. Customer Responsibilities.
Amego’s Services are dependent upon the timeliness, accuracy, and completeness of the information and representations that Amego receives from Customer, as well as Customer’s stated intended use of the Services. Providing Amego with inaccurate or incomplete information or representations may affect the Services Customer receives. Amego will not audit or otherwise verify the data Customer submits to Amego, although Amego may ask Customer to clarify certain information. For these reasons, Customer hereby represents, warrants, and covenants that Customer shall be responsible for the following:
(a) Customer shall be responsible for Users’ compliance with this Agreement.
(b) Customer shall be responsible for the accuracy, quality and legality of any electronic data, content, or information that has not been made publicly available, is owned or licensed by Customer, and is submitted to Amego by Customer or on Customer’s behalf, including Personal Data of Users and event attendees (“Customer Data”). Customer shall use commercially reasonable efforts to ensure that all Customer Data provided to Amego is true, correct, and complete in all material respects. Customer has obtained, and will maintain, all rights, notices, and consents necessary for Amego to process Customer Data as contemplated by this Agreement and the DPA.
(c) Customer shall be responsible for the means by which Customer acquired Customer Data.
(d) Customer shall provide sufficient access to all Customer Data as needed for Amego to perform the Services including, where applicable, API keys, integration tokens, or other secure access credentials reasonably necessary to access the Customer Data Amego needs to perform the Services. Customer agrees to comply with all reasonable requests of Amego as may be reasonably necessary for the performance of Services under this Agreement.
(e) Customer shall update Amego in a timely manner on any changes to Customer Data.
(f) Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Amego promptly of any such unauthorized access or use. Customer shall not make the Services available to anyone other than Users except as expressly permitted by this Agreement.
(g) Customer shall use the Services only in accordance with this Agreement and applicable laws and government regulations and shall not use the Services to store or transmit infringing, defamatory, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.
(h) Customer shall ensure that multiple Users shall not use the same login credentials to access the Services, and that no User shares his or her login credentials with another individual or User. If Amego reasonably determines that more than one User is using the same login credentials to access the Services, Amego may suspend the affected login credentials and, if Customer fails to remedy such use within ten (10) days following written notice, terminate this Agreement upon notice to Customer, with no refund of amounts paid prior to the date of termination.
(i) Customer shall not sell, resell, rent, lease, or create derivative works based on the Services, or reverse engineer, decompile, or disassemble the Services, except to the extent such restriction is prohibited by applicable law.
(j) Customer shall not use the Services to store or transmit Malicious Code.
(k) Customer shall not interfere with or disrupt the integrity or performance of the Services or third-party data contained therein.
(l) Customer shall not attempt to gain unauthorized access to the Services or their related systems or networks.
(m) Customer represents that it is not a direct competitor of Amego and shall not use the Services for benchmarking for competitive purposes.
(n) Customer shall not submit to Amego or use the Services to collect, store or process any Sensitive Data, unless expressly agreed by Amego in writing in an SOF or Change Order. For clarity, this restriction applies only to Sensitive Data as defined above and does not restrict Customer’s use of the Services with ordinary Personal Data.
(o) Each Party warrants that it has validly entered into this Agreement and has the legal power to do so.
5. Payment.
(a) Fees. As compensation for performing Services, Customer will compensate Amego in accordance with the terms of all SOFs entered into by the Parties.
(b) Taxes. Fees are exclusive of taxes, levies, duties, governmental charges, and expenses which amounts will be billed to, and paid by Customer. Customer is responsible for paying all taxes associated with its purchases hereunder, excluding taxes based on Amego’s net income, property, or employees.
(c) Billing and Payment. Unless other billing and payment terms are provided for in an SOF, Amego shall prepare and submit invoices to Customer via email for all Services performed and expenses incurred on a monthly basis. Customer will pay invoices in U.S. dollars within thirty (30) days of the date of Amego’s invoice. Payments due hereunder shall be made in immediately available funds by wire transfer, ACH transfer, certified check, bank check or such other method as may be agreed upon by Amego. If Customer disputes any invoiced amount in good faith, Customer shall notify Amego in writing, with reasonable detail, within fifteen (15) days of the invoice date and shall timely pay all undisputed amounts, and the Parties shall work together in good faith to promptly resolve the dispute. Except as provided in the preceding sentence, Customer shall have no right of offset or withholding under this Agreement. Any undisputed amounts not paid by Customer when due to Amego shall be subject to interest charges, from the date due until paid, at the rate of one- and one-half percent (1.5%) per month, or the highest interest rate allowable by law (whichever is less), payable monthly. If any undisputed amount due to Amego from Customer becomes past due, Amego may, at its option and upon ten (10) days’ prior written notice to Customer, withhold further Services until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Amego’s obligations under this Agreement.
6. Warranties; Disclaimer.
Amego warrants that (i) the Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards, and (ii) the Services will perform materially in accordance with the applicable SOF. Customer must notify Amego in writing of any breach of the foregoing warranties within thirty (30) days after the non-conformity is discovered. As Customer’s exclusive remedy and Amego’s sole liability for breach of these warranties, Amego will use commercially reasonable efforts to correct the non-conformity or re-perform the non-conforming Services and, if Amego is unable to do so within a reasonable period, Customer may terminate the affected Services and receive a refund of any prepaid fees for the non-conforming Services. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AMEGO MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND AMEGO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. AMEGO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT OUTPUTS GENERATED BY AI FEATURES WILL BE ACCURATE OR COMPLETE.
7. Proprietary Rights and Data Privacy.
(a) Reservation of Rights in the Services. Subject to the limited rights expressly granted hereunder, Amego reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
(b) Customer Data. As between Customer and Amego, Customer shall own all Customer Data, as uploaded or otherwise input into the Services, and all intellectual property rights therein. Customer hereby grants to Amego a worldwide, non-exclusive, royalty-free license during the term of this Agreement to host, copy, transmit, and process Customer Data solely as necessary to provide the Services in accordance with this Agreement and the DPA. Customer further grants to Amego a worldwide, perpetual, non-exclusive, royalty-free license to aggregate Customer Data and to use Customer Data as so aggregated, solely for Amego’s internal use for the purpose of improving and optimizing the Services (excluding, for clarity, the training, fine-tuning, or improvement of any artificial intelligence or machine learning model), and only so long as any such aggregation of Customer Data is anonymized and omits any Customer Data that would enable the identification of Customer, its clients, or any individual, company, or organization therefrom. During the term of this Agreement, Customer grants to Amego the right to use Customer Data to provide feedback to Customer concerning Customer’s use of the Services. Any such aggregation and use is subject to Section 7(k) and Section 19 of the DPA. This Agreement and each SOF constitute Customer’s documented instructions to Amego for purposes of the DPA.
(c) Suggestions. Customer hereby grants to Amego a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided to Amego by Customer or its Users relating to the operation of the Services. Amego will not publicly identify Customer as the source of any such feedback without Customer’s prior consent.
(d) Marketing. During the term of this Agreement, Customer grants to Amego a non-exclusive, royalty-free right to identify Customer as a customer of Amego, including by displaying Customer’s name and logo on Amego’s website and in Amego’s customer lists and sales and investor presentations, in each case in accordance with any reasonable trademark usage guidelines provided by Customer in writing. Any other use of Customer’s name, logo, or trademarks, including in press releases, case studies, testimonials, advertising, or other targeted marketing campaigns, shall require Customer’s prior written consent (which may be given by email). Customer may revoke the foregoing right upon written notice, in which case Amego shall cease such use within thirty (30) days after receipt of such notice; provided that Amego shall not be required to recall or modify any materials published or distributed prior to such revocation.
(e) Data Privacy. Customer represents and warrants that its use of the Services will comply with all applicable laws and regulations. Customer is responsible for determining whether the Services are suitable for Customer in light of its obligations under applicable laws, such as the Health Insurance Portability and Accountability Act and the Health Information Technology for Economic and Clinical Health Act as amended (“HIPAA”), the Gramm-Leach-Bliley Act of 1999 as amended (“GLBA”), or data protection laws, such as the General Data Protection Regulation (GDPR) or the California Consumer Privacy Act (CCPA). Amego will not be liable if the Services do not meet those requirements. To the extent required by applicable laws, Customer acknowledges and agrees that Customer is responsible for ensuring that any necessary notices with respect to and consents to the processing Amego conducts as part of the Services are obtained. If Customer processes Personal Data through the Services, the Amego Data Processing Addendum is incorporated into and forms part of this Agreement. In the event of any conflict between this Agreement and the DPA with respect to the processing of Personal Data, the DPA shall prevail.
(f) Sensitive Data. Customer acknowledges that the Services are not designed for the processing of Sensitive Data. Customer’s obligations with respect to Sensitive Data are set forth in Section 4(n).
(g) Sub-processors. Amego may engage Sub-processors (as defined in the DPA) to assist in providing the Services. Amego maintains a current list of Sub-processors in the Amego Trust Center and will update such list prior to authorizing any new Sub-processor to process Personal Data. Customer may object to a new Sub-processor on reasonable data protection grounds in accordance with the DPA. Amego shall remain responsible for the acts and omissions of its Sub-processors.
(h) Audit Rights. Amego maintains appropriate security and compliance documentation regarding its processing of Customer Data. Audit rights and related compliance verification are governed by the Data Processing Addendum.
(i) Privacy Policy. Amego’s processing of Personal Data on Customer’s behalf in connection with the Services is governed by the DPA, under which Customer acts as controller and Amego acts as processor. Amego’s Privacy Policy, available at https://www.amego.com/legal/privacy-policy, describes Amego’s handling of personal data for which Amego acts as an independent controller in connection with its own business operations (such as business contact, account administration, and website visitor information), consistent with Section 2.2 of the DPA, and does not modify the Parties’ obligations under this Agreement or the DPA. In the event of any conflict between the Privacy Policy and this Agreement or the DPA, this Agreement and the DPA shall prevail.
(j) Security. Amego shall maintain a risk-based information security program that includes administrative, physical, technical, and organizational safeguards designed to protect the security, confidentiality, and integrity of Customer Data, consistent with industry standards and as further described in the DPA. Amego shall notify Customer of any Security Incident (as defined in the DPA) affecting Customer Data without undue delay and in accordance with the DPA. Amego shall have no liability for any Security Incident to the extent caused by Customer, its Users, or Non-Amego Services, including through the compromise of Customer’s or its Users’ login credentials; provided that Amego shall continue to perform its notification, cooperation, and mitigation obligations under the DPA with respect to any such Security Incident.
(k) Artificial Intelligence Features. The Services may include artificial intelligence and machine learning features (“AI Features”). Amego shall not use Personal Data contained in Customer Data to train artificial intelligence or machine learning models, shall not use Customer Data to train or improve models for the benefit of any other customer, and shall implement technical safeguards designed to prevent the transmission of identifiable Personal Data to third-party AI providers, and shall implement contractual and technical controls designed to ensure that any such third-party AI providers do not retain or use Customer Data to train their models and process Customer Data only as required to provide the Services. Customer is responsible for determining whether and how AI Features are used within its deployment of the Services. The processing of Personal Data through AI Features is further governed by the DPA.
8. Confidentiality.
(a) Definition of Confidential Information. The Parties acknowledge that by reason of their relationship to the other hereunder, each may disclose or provide access (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain Confidential Information. “Confidential Information” shall mean (i) information concerning a Party’s products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a Party and its Affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during any demonstrations; and (iv) all other non-public information provided by the Disclosing Party hereunder, including, in the case of Customer, Customer Data. Nothing in this Agreement shall restrict Amego’s use or disclosure of Amego’s own information regarding the development, improvement, or use of Amego’s products or the Services, provided that Amego does not use or disclose Customer’s Confidential Information or Customer Data except as permitted by this Agreement. All Confidential Information shall remain the property of the Disclosing Party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
(b) Protection of Confidential Information. The Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care), (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed agreements with the Receiving Party containing protections no less stringent than those herein. Neither Party shall disclose the terms of this Agreement or any SOF to any third party other than its Affiliates, legal counsel, accountants, and actual or prospective investors, acquirers, and financing sources, in each case bound by confidentiality obligations, without the other Party’s prior written consent.
(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(d) Unauthorized Use or Disclosure of Confidential Information; Equitable Relief. In the event the Receiving Party discovers that any Confidential Information has been used, disseminated, or accessed in violation of this Agreement, it will promptly notify the Disclosing Party; take all commercially reasonable actions available to minimize the impact of the use, dissemination, or publication; and take any and all necessary steps to prevent any further breach of this Agreement. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available at law or at equity.
9. Indemnification.
(a) Mutual Indemnification. Each Party (the “Indemnifying Party”) shall defend the other Party, its Affiliates, and their respective officers, directors, employees, and shareholders (collectively, the “Indemnified Party”) against any claim, demand, suit, or proceeding brought by a third party (a “Claim”), and shall indemnify and hold harmless the Indemnified Party from and against all damages, fines, penalties, and costs finally awarded against the Indemnified Party, or agreed in a settlement approved by the Indemnifying Party, together with reasonable attorneys’ fees and expenses (collectively, “Losses”), to the extent arising out of: (i) the Indemnifying Party’s violation of applicable law in the performance of its obligations under this Agreement; (ii) bodily injury, death, or damage to real or tangible personal property caused by the negligence or willful misconduct of the Indemnifying Party or its Personnel, including while on-site at Customer events; or (iii) the fraud or willful misconduct of the Indemnifying Party or its Personnel.
(b) Indemnification by Amego. Amego shall defend Customer, its Affiliates, and their respective officers, directors, and employees against any Claim alleging that the Services, as provided by Amego and used by Customer in accordance with this Agreement, infringe or misappropriate any United States patent, copyright, or trademark, or any trade secret, of a third party (an “Infringement Claim”), and shall indemnify and hold them harmless from and against all Losses arising therefrom. Amego shall have no obligation under this Section 9(b) to the extent an Infringement Claim arises from: (i) Customer Data or any other content, materials, specifications, or instructions provided by or on behalf of Customer; (ii) Non-Amego Services or other third-party products, platforms, or services; (iii) any modification of the Services not made by or on behalf of Amego; (iv) the combination of the Services with any product, service, data, or process not provided by Amego, where the Infringement Claim would not have arisen but for such combination; (v) use of the Services in breach of this Agreement, or after Amego has notified Customer to cease such use; or (vi) any free, trial, beta, or pre-release version of the Services (each of (i) through (vi), an “Excluded Infringement Claim”).
(c) Infringement Remedies. If the Services become, or in Amego’s reasonable opinion are likely to become, the subject of an Infringement Claim, Amego may, at its option and expense: (i) procure for Customer the right to continue using the Services; (ii) modify or replace the Services so that they are non-infringing without material loss of functionality; or (iii) if neither of the foregoing is commercially reasonable, terminate the affected Services upon written notice and refund to Customer any prepaid fees for the portion of the affected Services not yet provided. SECTIONS 9(b) AND 9(c) STATE AMEGO’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
(d) Indemnification by Customer. Customer shall defend Amego, its Affiliates, and their respective officers, directors, and employees against any Claim, and shall indemnify and hold them harmless from and against all Losses, to the extent arising out of: (i) Customer Data, including its collection, sourcing, content, or use, or Customer’s failure to provide any notice or obtain any consent required under applicable law; (ii) Customer’s breach of Section 4(n); (iii) the use of the Services by Customer or its Users in breach of Section 4 or applicable law; (iv) Customer’s use of Non-Amego Services; (v) any Excluded Infringement Claim described in Section 9(b)(i) or 9(b)(iii); or (vi) any claim brought by a client on whose behalf Customer purchases the Services.
(e) Procedure. The Indemnified Party shall: (i) give the Indemnifying Party prompt written notice of the Claim, provided that any failure or delay in giving notice shall relieve the Indemnifying Party of its obligations only to the extent it is materially prejudiced thereby; (ii) grant the Indemnifying Party sole control of the defense and settlement of the Claim; and (iii) provide reasonable cooperation and assistance, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense of the Claim with counsel of its own choosing at its own expense. The Indemnifying Party shall not, without the Indemnified Party’s prior written consent (not to be unreasonably withheld, conditioned, or delayed), enter into any settlement that imposes any unreimbursed monetary obligation or admission of fault on the Indemnified Party or that does not include a full release of the Indemnified Party. If the Indemnifying Party fails to assume the defense of a Claim within thirty (30) days after receipt of written notice thereof, the Indemnified Party may, upon further written notice to the Indemnifying Party, retain its own counsel and defend the Claim, and the Indemnifying Party shall reimburse the reasonable attorneys’ fees and expenses of such defense.
(f) Scope. The obligations in this Section 9 apply only to Claims brought by third parties, are subject to Section 11, and state the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy against, the other Party with respect to the Claims described in this Section 9.
10. Services Limitations.
Customer acknowledges that the Services rely on third-party platforms, networks, and data sources. Amego will use commercially reasonable efforts to select, manage, and monitor such third-party providers as part of the Services. Amego remains responsible for the provision of the Services in accordance with this Agreement; however, Amego shall not be liable for delays, failures, or inaccuracies caused by third-party systems or Customer-provided data that are outside of Amego’s reasonable control. Customer is responsible for verifying the accuracy of Customer Data and for its use of the Services.
11. Limitation of Liability.
(a) Actions. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF DATA, OR DAMAGE TO GOODWILL, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, INFRINGEMENT OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
(b) Liability Cap. EXCEPT FOR EXCLUDED CLAIMS AND AS PROVIDED IN SECTION 11(d), EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO AMEGO UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED THAT THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES DUE UNDER THIS AGREEMENT.
(c) Excluded Claims. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO: (i) A PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (EXCLUDING DATA PROTECTION CLAIMS, WHICH ARE GOVERNED BY SECTION 11(d)); (ii) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 (EXCLUDING DATA PROTECTION CLAIMS, WHICH ARE GOVERNED BY SECTION 11(d)); OR (iii) A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT.
(d) Data Protection Claims. NOTWITHSTANDING SECTION 11(c), AMEGO’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO ALL DATA PROTECTION CLAIMS SHALL NOT EXCEED TWO TIMES (2X) THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO AMEGO UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE FIRST SUCH CLAIM (THE “DATA PROTECTION CAP”). “DATA PROTECTION CLAIMS” MEANS ANY CLAIMS, WHETHER ASSERTED BY CUSTOMER OR A THIRD PARTY AND WHETHER ARISING IN CONTRACT, TORT, UNDER SECTION 8 OR SECTION 9, OR OTHERWISE, ARISING OUT OF OR RELATING TO: (i) AMEGO’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CUSTOMER DATA OR PERSONAL DATA UNDER SECTION 7 OR THE DPA; OR (ii) ANY SECURITY INCIDENT AFFECTING CUSTOMER DATA IN AMEGO’S POSSESSION OR CONTROL. THE DATA PROTECTION CAP IS NOT IN ADDITION TO THE LIABILITY CAP IN SECTION 11(b), AND IN NO EVENT SHALL AMEGO’S TOTAL AGGREGATE LIABILITY UNDER SECTIONS 11(b) AND 11(d) COMBINED EXCEED THE DATA PROTECTION CAP. THE DATA PROTECTION CAP SHALL APPLY TO DATA PROTECTION CLAIMS EVEN IF SUCH CLAIMS ARE ALLEGED OR FOUND TO ARISE FROM AMEGO’S GROSS NEGLIGENCE; PROVIDED THAT THE DATA PROTECTION CAP SHALL NOT APPLY TO THE EXTENT A DATA PROTECTION CLAIM ARISES FROM AMEGO’S FRAUD OR WILLFUL MISCONDUCT. THIS SECTION 11, INCLUDING THIS SECTION 11(d), CONSTITUTES THE LIMITATIONS OF LIABILITY REFERRED TO IN SECTION 16 OF THE DPA.
12. Termination.
(a) Term. The term of this Agreement (the “Term”) begins on the Effective Date and continues until all Services and subscriptions (if applicable), including any renewal terms have expired or been terminated. The Effective Date is the date on which the SOF has been executed by both Parties, unless otherwise specified in the SOF.
(b) Termination for Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured: (i) in the event of a monetary breach, ten (10) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach, thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
(c) Termination for Insolvency. Either Party may terminate this Agreement upon written notice if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors that is not dismissed within sixty (60) days.
(d) Obligations upon Termination. Termination of this Agreement for any reason shall not discharge Customer from amounts unpaid at the time of such termination. Customer shall pay Amego for all Services rendered prior to the effective date of termination. Upon Customer’s written request made within thirty (30) days following termination or expiration, Amego will make Customer Data available to Customer for export in a commonly used format. Thereafter, Amego will return or securely delete Customer Data in accordance with the DPA and, to the extent consistent with the DPA and applicable data protection law, any data retention period set forth in the SOF (which Customer hereby instructs Amego to apply for purposes of the DPA), except to the extent retention is required by applicable law. If Customer terminates this Agreement for Amego’s uncured material breach, Amego shall refund any prepaid fees covering the remainder of the applicable term after the effective date of termination.
13. Relationship of the Parties.
The relationship of the Parties hereto is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties, or commitments on behalf of the other Party, or otherwise act on behalf of the other. The Agreement shall not be construed as constituting either Party as partner, joint venture or fiduciary of the other Party or to create any other form of legal association that would impose liability upon one Party for the act or failure to act of the other Party, or as providing either Party with the right, power or authority (express or implied) to create any duty or obligation of the other Party. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
14. Force Majeure.
Neither Party shall be liable for any delay or failure to perform its obligations under this Agreement (other than payment obligations for Services rendered) due to any cause beyond its reasonable control (including, but not limited to, acts of God, epidemics or pandemics, acts of war or terrorism, strikes, failures of third-party telecommunications, hosting, or electrical infrastructure, lockouts or other industrial disturbances, fire, flood, explosion and laws, rules, regulations or orders of any governmental authority or delays caused by any other person, company or authority), and the affected Party shall be entitled to a reasonable extension of time to perform while such cause exists, provided that it promptly notifies the other Party and uses commercially reasonable efforts to mitigate the effects of such cause.
15. Governing Law and Venue.
This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in New Castle County, Delaware. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its Confidential Information or intellectual property rights. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
16. Attorneys’ Fees.
If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
17. Collection Expenses.
If Amego incurs any costs, expenses, or fees, including reasonable attorneys’ fees and professional collection services fees, in connection with the collection or payment of any undisputed amounts due it under this Agreement, Customer agrees to reimburse Amego for all such reasonable costs, expenses and fees.
18. Assignment.
Neither Party may assign this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may assign this Agreement without consent in connection with a merger, acquisition, corporate reorganization, or sale of substantially all of its assets, provided that the assignee agrees in writing to be bound by this Agreement. Any attempted assignment in violation of this Section shall be void. This Agreement shall bind and benefit the Parties and their respective permitted successors and assigns.
19. Severability.
If any provision or portion of this Agreement shall be rendered by applicable Law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
20. Survival.
Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement. Additionally, Sections relating to payment, proprietary rights, Customer Data, confidentiality, indemnification, limitation of liability, and any other provisions that by their nature should survive shall survive termination.
21. Notices.
All notices or other communications required under this Agreement shall be in writing and shall be deemed given when received if delivered by (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) overnight mail, addressed to the Party to be notified at the address provided in the SOF. An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Agreement if sent to the email address designated for notices in the SOF (or as otherwise designated by the receiving Party in writing). Electronic Notice shall be deemed received upon transmission, provided that the sender does not receive an automated notice of delivery failure.
22. Waiver.
No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
23. Entire Agreement; Modification.
This Agreement, including all SOFs, Change Orders, and the DPA, is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic, or otherwise. In the event of any conflict, the following order of precedence shall apply: (i) the DPA, solely with respect to the processing of Personal Data; (ii) the applicable SOF or Change Order, solely with respect to the Services described therein and only where the SOF or Change Order expressly identifies the provision of these Terms and Conditions it modifies; and (iii) these Terms and Conditions. Any terms or conditions contained in any Customer purchase order, vendor registration, supplier portal, or similar document shall be of no force or effect, even if acknowledged or accepted by Amego. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties. Each Party acknowledges and agrees that it is not relying upon any representations or statements made by the other Party or its Personnel, representatives, or attorneys regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement.
24. Export Compliance.
The Services, other technology Amego makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use the Services in any country or region subject to comprehensive U.S. sanctions or embargoes or in violation of any U.S. export law or regulation.
25. Authorized Signatories.
It is agreed and warranted by the Parties that the individuals signing this Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required. This Agreement and any SOF may be executed electronically and in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.