HomeMy WebLinkAbout2021-171 PO 20220166- Amilia Technologies USA Inc L.„s ` _ Purchase Order
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CITY ilECORD 9
5Fiscal Year 2022 Page: 1 of: 1
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B Ashland Parks Commission 4D-,S M5=-I ID E jalglin _D 0 Mli�, --
ATTN: Accounts Payable Purchase
L AshlandalOR 97520 Order# 20220166
T Phone: 541/552-2010
O Email: payable@ashland.or.us
✓ S C/O Parks Department
E AMILIA TECHNOLOGIES USA INC. H Admin Office
1751 RICHARDSON STREET I 340 South Pioneer
N• SUITE 3.105 P Ashland, OR 97520
O MONTREAL, QC H3K 1G6 T Phone: 541/488-5340
R 0 Fax: 541/488-5314
Michael Black _
--,I:a-@ca==E-eta is'➢the'7=-bTarc='$--a 5 IE-la-- -- —1.-1=nuTTrfizaigg§I-- = _ X2-1-. eliisa a-_)Lla_.
10/12/2021 6481 FOB ASHLAND OR/NET30 Parks Accounts Payable
to i L r - l( — �-_
SmartRec Software
1 SmartRec Software 1.0 $3,900.0000 $3,900.00
Term: 12 Months
Web based parks and recreation analysis software for cost
recovery
12 Months @$300.00 per month
Consulting fee$300.00 ,
Project Account: $3,900.00
***************GL SUMMARY***************
120900-604160 $3,900.00
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By: 1�ti Date: /t IL �.�-
Authorized : : ure iT .______ $3,900.00
FORM #3 CITY OF
A r uuest for a Purchase Order2---&' 7 06iSH LAN D
REQUISITION Date of request: 09/2072021
Required date for delivery: , -
6
Z/
Vendor Name /Amelia Consulting USA dba 110% Inc.
Address,City,State,Zip 1751 Richardson Street, Suite 3.105,City of Montreal,Province of Quebec Canada
Contact Name&Telephone Number
Email address
SOURCING METHOD
❑ Exempt from Competitive Bidding 0 Emergency
❑ Re. •• e _ ....GC ❑ Invitation to Bid 0 Form#13,Written i indings and Authorization
► 2.50 Date approved by Council: - 0 Written luote or•rbposal attached
Written quote or proposal attache. (Attach copy of council communication) (If council :ppro al required,attach copy of CC)
0 Small Procurement 0 Request for Proposal Coo•erative ' o rement
Not exceeding$5,000 Date approved by Council: ❑■ State of 0 Ton
I] Direct Award _(Attach copy of council communication) Contract# 566
0 Verbal/Written bid(s)or proposal(s) ❑ Request for Qualifications(Public Works) 0 State of ashi oton
Date approved by Council: Contr.' #
_(Attach copy of council communication) 0 Oth-.,government agency contract
Intermediate Procurement ❑ Sole Source A•-ncy
GOODS&SERVICES 0 Applicable Form(#5,6,7 or 8) Contract#
Greater than$5,000 and less than$100,000 0 Written quote or proposal attached Intergovernmental Agreement
O (3)Written bids&solicitation attached 0 Form#4,Personal Services$5K to$75K Agency
PERSONAL SERVICES 0 Special Procurement 0 Annual cost to City does not exceed$25,000.
Greater than$5,000 and less than$75,000 0 Form#9,Request for Approval Agreement approved by Legal and approved/signed by
❑ Less than$35,000,by direct appointment 0 Written quote or proposal attached City Administrator.AMC 2.50.070(4)
❑ (3)Written proposals&solicitation attached Date approved by Council:4-- ElAnnualcost to City exceeds$25,000,Council
1=1Form#4,Personal Services$5K to$75K Valid until: *' ate) approval required.(Attach copy of council communication)
Description of SERVICES u u ti'� Total Copt
Smart Rec Software License for 12 months expires 9/ 2.Web based parks and recreation o c 4 ro
analysis software for cost recovery04
Y i 3,90000) • ..
Item# Quantity -Unit Description of MATERIALS Unit Price Total Cost
E■ Per attached quotelproposal !=u tO+AL,COST`,
$I f`
- Account Number 1 2 0 9 0 o.6 0 4 1 6 0 39a s` �'
Project Number
Account Number - Account Number -
*Expenditure must be charged to the appropriate account numbers for the financials to accurately reflect the actual expenditures.
IT Director in collaboration with department to approve all hardware and software purchases:
IT Director Date Support-Yes/No
By signing this requisition form,I certify that the City's public contracting requirements have been satisfied.
Employee: /a-4-a- /�a Department Head:
(Equal to or greater than$5,000)
Department Manager/Supervisor: City Administrator:
(Equal to or greater than$25,000)
Funds appropriated for current fiscal year: YES / NO
Finance Director-(Equal to orgreaterthan$5,000) Date
Comments:
Form#3-Requisition
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•••®by;amilla
The Agreement
This Software License Agreement'(the"Agreement')is entered into by and between:
Ashland Parks and Recreation, a AMILIA TECHNOLOGIES USA, INC., a company
[company/corporation/other(as applicable)]incorporated incorporated under the laws of Delaware having its
under the laws of[.] having its registered office at:1195 registered office at 1209 Orange Street, City of
East Main Street, Ashland, Oregon, 97520, United Wilmington, County of New Castle, 19801 and its
States. Represented by: Rachel Dials principal place of business at 1751 Richardson Street,
Suite .3.105, City of Montreal, Province of Quebec,
("Customer"or"you") Canada, represented herein by[•], [.]
(Collectively,the"Parties")
The parties agree to the following terms & conditions:
Irllii-il '•`'rn
Initial Term: 12 months
Commencement Date: September, 15,2021 Expiration Date: September, 15, 2022
I
Software fees: $300/month
(Software fees are referred to as"License Fees")
$300 for Cost of Service Consulting services
•
Cost of Service Consulting services,such as consulting and training services, are performed on a fixed price -
basis and will be invoiced according to the payment schedule established in a statement of work to be issued by
Amilia.
Cost of Service Consulting services,such as data migration or data consulting,are rendered on a time and material
basis and will be invoiced based on'the rates established in a statement of work to be issued by Amilia.
Any notice or other communication given under the terms of this Agreement shall be in writing and may be delivered
personally, by courier, or by prepaid registered mail, addressed as follows, until changed by notice given in
accordance herewith:
if to Amilia: at 1751 Richardson Street, Suite 3.105, City of Montreal, Province of Quebec, Canada
if to Customer: at the address above.•
Any such notice or other communication shall be effective when actually received and, if received after normal
"business hours,shall be effective the next business day after receipt.
The foregoing shall also apply, as applicable, as regards to any payment made to Amilia under the terms of the
Agreement.
This Agreement incorporates all the terms and conditions specified in Appendix A-Terms and conditions.
In the event of a conflict between any provisions in the Appendix A and any other provision in the Agreement or
any other appendix or exhibit to the Agreement, the terms provided in the Appendix A shall govern.
Year round software support available by in-app chat and by email at costrecovery@amilia.com
AMILIA TECHNOLOGIES USA, INC. ASHLAND PARKS AND RECREATION
By: By:
Name: Eric Perowne Name:
if'al ,--1 A • tet
Title: Cost Recovery Associate Title:
Date: September 09,2021 Date: , /i4/24
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•0061 by amnia
APPENDIX A
TERMS AND CONDITIONS
1. The Amilia Solution any transactions made in connection with your use of the
a. Platform & API. Amilia and/or SmartRec Amilia Solution.
e-commerce platform(the"Platform")provides(i)a virtual d. Customer/End User Service Support.Amilia
storefront that is designed to increase the revenue and will use commercially reasonable efforts to resolve any
streamline the operations of programs and (ii) an technical issues relating to your Amilia account
application program interface("API"and, collectively with ("Account") and your use of the Amilia Solution. You are
the Platform,the"Amilia Solution")to enable access to the solely responsible for all customer service issues to your
Platform.The uses of the Amilia Solution(including use of End Users relating to your License for your services,
the API through a third-party product that accesses the including pricing, order fulfillment, order cancellation by
Platform) are subject to the terms and conditions of this you or the customer, returns, refunds and adjustments,
Agreement. rebates,functionality and warranty,technical support and
b. License Grant. Subject to you paying the feedback concerning experiences with your personnel,
License Fees and any other fees stipulated and agreed policies, or processes. In performing customer service,
upon with Amilia herein, Amilia grants you a personal, you will always present yourself as a separate entity from
limited, non-exclusive, revocable, non-transferable Amilia. You acknowledge that you shall comply with
license, non-sublicensablelicense to electronically Amilia's guidelines for making available your End User
access and use the Amilia Solution (the "License"). The Information to be importedand processed through the •
License includes access to all features, modules (except Amilia Platform. You further acknowledge that Amilia
Community Segments), Amilia Solution, and API/Web does not control the import of such information from its
Hook end points/connections developed by Amilia. The point of origin and shall not be held liable for any delays
Amilia Solution includes any software, programs, to your and your customer's access to the Platform
documentation, tools, internet-based services, caused by your non-compliance to such import
components, and any updates '(including software guidelines.
maintenance,service information,.help content, bug fixes e. Security. Amilia maintains administrative,
or maintenance releases) thereto provided to you by technical, and physical procedures to protect End User
Amilia. Amilia reserves for itself all other. rights and Information stored on Amilia servers from unauthorized
interest not explicitly granted under this Agreement. access, accidental loss, or modification. However, Amilia
c. License fees and Payment terms.You agree does not guarantee that unauthorized third parties will
to pay to Amilia via direct debit or electronic funds transfer never beable to defeat those measures or use such
(additional fees may apply if payment is made by cheque) information for improper purposes. For purposes hereof,
all License Fees and any other fees stipulated and agreed . "End User Information" means such information or data
upon with Amilia herein within thirty (30) days of date of created, collected, generated, licensed, leased, on your
invoice issued by Amilia. If you fail to make any payment behalf or information or data otherwise under the control
to Amilia when due, you must, without prejudice to any or responsibility of you wherever located, including; but
other right or remedy of Amilia, including as set forth in not limited to, Personal Information or Sensitive Personal
Section 3.b: (a) pay interest on the amount.outstanding, Information, that are disclosed •or otherwise made
at a monthly rate equal to 1.25% or a per annum rate available to Amilia by you pursuant to or as part of this
equal to 15%;and (b) reimburse Amilia for all reasonable Agreement. "Personal Information" means all information
costs and expenses incurred by it in relation to 'the or data (regardless of format) that (i) identifies or can be
outstanding debt and collection of said debt. used to identify,contact,or locate an individual,or(ii)that
Notwithstanding any provision to the contrary, all relates to an individual, whose identity can be either
payments required to be made hereunder shall be timely directly or indirectly inferred, including any information
made, and no payments to Amilia shall .be withheld, that is linked or linkable to that individual regardless of the
delayed, reduced, or refunded if Amilia has fully citizenship,age,or other status of the individual. Personal
performed its material obligations and its inability to meet Information includes but is not limited to first and last
any schedule or delivery'requirements is caused by your name;last name plus data regarding birth;phone number;
failure to provide certain of its information (including End email address; street address; geolocation; customer
User Information as defined hereinafter) as are required number or identifier; government identifier; or account
to perform any of Amilia's obligations hereunder. It is number or identifier. "Sensitive Personal Information"is a
solely your responsibility to determine what, if any,taxes subset of Personal Information, which due to its nature
apply in connection with the use of the Amilia Solution, has been classified by law as deserving additional privacy
and to assess,collect,report,or remit the correct taxes to and security protections. Sensitive Personal Information
the proper tax authority. Amilia has no obligation to consists of: (i) all government-issued identification
determine whether taxes apply, or calculate, collect; numbers (including social security, passport, national ID
report, or remit any taxes to any tax authority arising from and driver's license numbers); (ii) all financial account
•
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numbers (including payment or credit card numbers and unauthorized use; (iv) are, and will remain during the
bank account numbers);(iii)individually identifiable health Initial Term or any Renewal Term, in compliance with all
information; (iv) biometric information; (v) all data applicable laws in connection with your use of the Amilia •
obtained from a consumer reporting agency (such as Solution; and (v) shall use the trademarks, names,
employee background investigation reports, credit references, logos or other marks owned or licensed by
reports, and credit scores); and (vi) data elements Amilia (collectively, the "Amilia Trademarks") strictly in
revealing race, ethnicity, national origin, religion; trade accordance with the restrictions and policies that Amilia
union membership, sex life or sexual orientation, and may provide you with from time to time. You will not: (i)
criminal records or allegations of crimes. license, sublicense, sell, resell, rent, lease, assign,
f. Availability. Subject to any emergency distribute, timeshare or otherwise commercially exploit or
maintenance performed on an unscheduled basis and any make the Amilia Solution available to any third party,other
downtime resulting from such emergency maintenance than as contemplated in this Agreement;(ii)send spam or
and except for all planned downtime, Amilia will use otherwise duplicative or unsolicited messages using
commercially reasonable efforts to operate and maintain directly or indirectly the Amilia Solution in violation of
the Amilia Solution to make it available 24 hours a day, 7 applicable law; (iii) send, store or use obscene,
days a week. The number and the duration of any threatening, libellous or otherwise unlawful or tortious
planned downtime shall be at Amilia's sole discretion, material using directly or indirectly the Amilia Solution;(iv)
provided, however, that Amilia intends to use send, store or use any material violating third party rights
commercially reasonable efforts to schedule such including, but not limited to, Intellectual Property Rights
planned downtime during evening and weekend hours (as defined herein) or privacy rights using directly or
(Eastern Time). indirectly the Amilia ,Solution; (iv) send, store or use
g. Amilia Representations and Warranties. material containing harmful computer codes,files,scripts,
Amilia represents and warrants to you that: (i) it has all agents or programs using directly or indirectly the Amilia
necessary rights in the Platform and its intellectual Solution; (v) interfere with or disrupt the integrity or
property to grant to you the Licence under this Agreement; performance of the Amilia Solution or the data contained
and (ii) the Platform will perform substantially in therein; (vi) attempt to gain unauthorized access to the
accordance with the Documentation. Amilia does not Amilia Solution or its related systems or networks; (vii)
guarantee that the Platform will perform error free or modify, copy or create derivative works based on the
uninterrupted. Customer acknowledges that Amilia does Amilia Solution or Amilia's Intellectual Property Rights
not control the transfer of data over communications therein; (viii) create internet links to or from the Amilia
facilities, including the Internet and that the Platform may Solution, or frame or mirror any content forming any part
be subject to limitations, delays, and other problems . of the Platform other than on your own website for the
inherent in the use of such communications facilities. For purposes hereof or otherwise for your own internal
purposes of this provision, "Documentation" means the business purposes; or(ix)disassemble,reverse engineer
user guides,online help, release notes,training materials or decompile the Amilia Solution for any purpose or
and other documentation provided or made available by reason.
Amilia to•you regarding the use or operation of the b. Suspicion of Unauthorized or Illegal Use.
Platform,as may be amended from time to time by Amilia, Amiliareserves the right to decline any transaction
at its sole discretion. EXCEPT AS EXPRESSLY STATED submitted to the Platform which Amilia reasonably
IN THIS SECTION OR AS REQUIRED BY APPLICABLE suspects, in its sole discretion, (i) is in violation of this
LAW, THE PLATFORM, THE API AND THE Agreement or any other Amilia Agreement to which you
DOCUMENTATION ARE PROVIDED ON AN "AS IS" are a party or is in violation of applicable law, or (ii)
AND "AS AVAILABLE" BASIS, WITHOUT ANY exposes either party to harm, including but not limited to
WARRANTIES, EITHER EXPRESS, IMPLIED, OR fraud and other criminal acts. You hereby grant Amilia
STATUTORY, INCLUDING WITHOUT LIMITATION ANY authorization toshare information with law enforcement
IMPLIED WARRANTIES OF TITLE, about you, your transactions, or your Account if Amilia
MERCHANTABILITY, FITNESS FOR A PARTICULAR reasonably suspects that your Account has been used for
PURPOSE,AND NON-INFRINGEMENT. an illegal or criminal purpose. Amilia will give you prompt
advance notice of any impending disclosure of your
2. Your Engagement. information to law enforcement and grant you, or your
a. Use. You represent, warrant and covenant attorneys, the possibility to participate in any police or
that you:(I)shall use the Amilia Solution as contemplated legal proceeding.
by this Agreement, (ii) have the sole responsibility for the c. Your Content. For the Initial Term or any
accuracy, quality, integrity, legality and reliability of your Renewal Term, you grant a non-exclusive, non-
data; (iii) shall use commercially reasonable efforts to transferable, royalty-free,fully-paid,worldwide license,to
prevent unauthorized access to, or use of, the Amilia use, copy, publicly perform, publicly display, reformat,
Solution, and promptly notify Amilia of any such translate, excerpt (in whole or in part), .sublicense,
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distribute,.prepare derivative works of, or incorporate into specified herein, unless otherwise terminated in
otherworks any and all information about your goods and accordance with the provisions herein. Notwithstanding
services ("License for your services"), including any the foregoing, this Agreement shall automatically be
trademarks, trade names, service marks, logos, images, extended for an additional one-year term on the Expiration
descriptions or other text, telephone numbers, and Date (each, a "Renewal Term") and on each successive
addresses therein,for any purpose,whether on the Amilia anniversary of the Expiration Date (each, a "Renewal
public website, third-party websites, mobile applications, Date"), unless and until (i)either party gives written notice
syndicated advertisements or otherwise. The license of non-renewal at least 60 business days before the
rights granted hereby will apply to any form, media, or Expiration Date or any Renewal Date; or (ii) the
technology. The creation, distribution, transmission, Agreement is terminated earlier in accordance with its
public display and performance, accessing, downloading terms.
and copying of your information pursuant to the license b. Suspension. With reasonable advance
rights granted to Amilia herein, to the best of your notice to you,Amilia may suspend your Account and your
knowledge, does not and will not infringe any rights,, access to the Amilia Solution, at its sole discretion, if (i)
including but not limited to Intellectual Property Rights or Amilia reasonably determines in its sole discretion that
privacy rights,,of any third party. your use of the Amilia Solution is causing immediate,
d. Privacy. You acknowledge having reviewed material and ongoing harm to the Amilia Solution or its use
the Amilia Privacy Policy by others or abuse or excessively frequent requests to the
(https://www.amilia.com/legal/privacy) relating to the Platform via the API, as determined by Amilia in its sole
collection, use and safeguard of the personal information discretion;or(ii) if you fail to make any payment to Amilia
provided to Amilia on its website. If you receive when due and such failure is not cured within ten (10)
information about others using the Amilia solution, you days after receipt of'a notice from Amilia. Amilia is not
must keep such information confidential and only use it in liable to you or any other person for anydamages
connection with the Amilia Solution and your policies resulting from a suspension under these circumstances.
relating to the use of information that is confidential or c. Termination by either party.This Agreement
personal or as otherwise permitted by applicable law.You may be immediately terminated by you or by Amilia: (i) as
may not disclose or distribute'any such information to a set forth in Section 6.a or 7.1; (ii) if the other party is in
third party or use any such information for marketing material breach of any of the provisions of the Agreement
purposes unless you received express written consent to and.such breach is not cured within 60 days after receipt
do so. . of notice from the non-breaching party; or (iii) if either.
e. Your Representations and Warranties. You ' party commits an Act of bankruptcy. For purposes of this
represent and warrant to Amilia that: (a) you are eligible Section 3.c. iii)., an "Act of bankruptcy"shall mean, (i)the
to register and use the Amilia Solution and have the right, entry of a decree or order for relief of a party by a court of
power, and ability to enter into and perform under this competent jurisdiction in any involuntary case involving a
Agreement; (b) the name identified by you when party under any bankruptcy, insolvency, or other similar
registering is your name or business name'under which law now or hereafter in effect; (ii) the appointment of a
you sell goods and services.; (c) any sales transaction receiver, liquidator, assignee, custodian,trustee, or other
submitted by you will represent a bona fide sale by you; similar agent for a party or for.any substantial Part of a
(d)any sales transactions submitted by you will accurately party's assets or property; (iii) the filing with respect to a
describe your license for your services sold and deliveredparty of a petition in any such involuntary' bankruptcy
to your customers; (e).you will fulfill all of your obligations cse, which petition remains un-dismissed for a period of
to each customer for which you submit a transaction and ninety (90) days or which is 'dismissed or suspended
will resolve any consumer dispute or complaint directly pursuant to Section 305 of the Federal Bankruptcy Code
with your customer;(f)all transactions initiated by you will (or any corresponding provision of any future' United
comply with all applicable laws, rules, and regulations States bankruptcy law);(iv)the commencement by a party
applicable to your business, including any applicable tax of a voluntary case under any bankruptcy, insolvency, or
laws and regulations; and (g) you will not use the Amilia other similar law now or hereafter in effect; or (v) the
Solution, directly or indirectly, for any fraudulent making by a party of any general assignment for the
undertaking or in any manner so as to interfere with the benefit of creditors.
use of the Amilia Solution in accordance with the terms'of d. Termination by you. To the extent that the
this Agreement. Initial Term is for a period exceeding 12 months,youmay
terminate this Agreement at the expiration of the 12-
3. Initial Term, Renewal Term, Suspension and month period starting as at the Commencement.Date of
Termination the Initial Term by giving a written notice of 90 days to
a. Initial Term. This Agreement (and the Amilia. The effective date of such termination shall be at
License granted herein) commences. upon the the expiration of such 90-days notice.
Commencement Date and expires on the Expiration Date
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e. Effects of Suspension or Termination. Upon which,after disclosure,becomes part of the public domain
suspension or termination of this Agreement, you agree: by publication or otherwise, except by breach of this
(i) to immediately deactivate your Account and your Agreement by the Receiving Party; (iii) information that
• access to the Platform;(ii)to immediately cease use of the was in the Receiving Party's possession at the time of
Amilia Solution; (ii) to discontinue use of any Amilia disclosure by the Disclosing Party, provided that such
Trademarks or other Intellectual Property Rights of Amilia information was not obtained, directly or indirectly, from
and to immediately remove any Amilia Trademarks from the Disclosing Party on a confidential basis; (iv)
your website;(iii)that the License granted by Amilia to you information that the Receiving Party can demonstrate
under this Agreement shall terminate; and (iv)that Amilia resulted from its own research and development,
may immediately deactivate your Account and your independent of disclosures by the Disclosing Party; or(v)
access to the Platform and after 60 days, Amilia may information that the Receiving Party received from third
delete your Account from Amilia's"live"site. During such parties, provided that such information was not obtained,
60 days and upon your written request, Amilia will grant directly or indirectly, from the Disclosing Party on a
you limited access to the Platform for the sole purpose of confidential basis. Notwithstanding anything in this
allowing you to retrieve your data, provided you have paid Agreement to the contrary, the Receiving Party may
in full all amounts owed to Amilia up to the date of disclose confidential information pursuant to any
suspension or termination of this Agreement; (v)that you governmental,judicial, or administrative order,subpoena,
will not be refunded the remainder of any fees that you discovery request, regulatory request or similar
paid for the Amilia Solution prior to such termination or requirement, provided that the Receiving Party promptly,
suspension;and(vi)that Amilia will not be liable to you for to the extent legally permissible and practicable, notifies
compensation,reimbursement,or damages in connection the Disclosing Party in writing of such demand for'
with your use, termination, suspension of the Amilia disclosure so that the Disclosing Party, at its sole
Solution or deletion of your information or account data. expense, may seek to make such disclosure subject to a
protective order or other appropriate remedy to preserve
4. Confidential Information. the confidentiality of the confidential information. The
"Confidential Information" means• the terms and Receiving Party shall not oppose and shall cooperate with
conditions of this Agreement, any pricing information efforts by the Disclosing Party with respect to any such
provided by either party (a "Disclosing Party") and any request for a protective order or other relief.
information receivedby the other party (a "Receiving Notwithstanding the foregoing, if the Disclosing Party is
Party") in connection with this Agreement which is not unable to obtain or does not seek a protective order and
otherwise available to thegeneral public without the Receiving Party is legally requested or required to
restriction as well as any and all other Intellectual Property - disclose such confidential information, disclosure of such
Rights, proprietary knowledge, trade secrets, customer confidential information may be made without liability.The
lists or information concerning the Disclosing Party's Receiving Party shall, upon any request by the Disclosing
internal affairs, technical information, specifications, Party,immediately return or destroy the Disclosing Party's
drawings, documentation and "know-how" of every kind Confidential Information and all portions and copies
and description supplied by the Disclosing Party, or thereof, which are in Receiving Party's possession or
indirectly by any of its affiliates, under this Agreement or control. If the Receiving Party discloses or uses (or
otherwise. All Confidential Information of a Disclosing , threatens to disclose or use)any Confidential Information
Party is, and shall remain, the exclusive property of the of the Disclosing Party in breach of this Section 4, the
Disclosing Party. The Receiving Party shall treat and Disclosing Party shall have the right, in addition to any
protect the Confidential Information of the Disclosing other remedies available to it, to seek injunctive relief to
Party as confidential and shall not reproduce or divulge enjoin such acts,,without the requirement of posting a
the Confidential Information of the Disclosing Party-in bond, it being specifically acknowledged by the Parties
whole or,in part to any third party,except as authorizedin that any other available remedies are inadequate.
writing by the Disclosing Party or as permitted by this
Agreement. The Receiving Party may disclose 5. Intellectual Property Rights.
Confidential Information only to its affiliates, employees, All patents, patent applications, copyright, names,
directors, or officers on a "need to know" basis, provided trademarks, service marks,trade dress, know-how,trade
that each such affiliates, employee, director or officer, as secrets, industrial designs, other similar instruments, or
applicable,shall have signed a confidentiality undertaking rights whether proprietary or otherwise, whether
no less restrictive than the provisions of this Section 4. registered or unregistered, and all rights in relation to any
Notwithstanding any provisions contained in this of the foregoing which are recognized in any jurisdiction
Agreement, the Receiving Party shall not be required to ("Intellectual Property Rights") owned or held by Amilia
maintain in confidence the following information: (i) shall always remain Intellectual Property Rights of Amilia.
information which, at the time of disclosure to the Nothing in thisAgreement shall be construed or
Receiving Party, is in the public domain; (ii) information interpreted as conferring upon you any right or interest in
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the Intellectual Property Rights owned or held by Amilia, agents;•and.will hold the Amilia Parties harmless from and
whether in the Platform, the API or otherwise, other than against all liability, damages, expenses and costs finally
as expressly set forth in this Agreement._AII data entered awarded or agreed to be paid in settlement (including, -
or uploaded by you, except for transaction data shared without limitation, reasonable legal fees) (collectively,
with the user, is your sole and exclusive property. Amilia "Losses")to the extent based upon such a Claim.
is free to use or disclose any comments or ideas that you c. Limitation of Liability
submit to Amiliawithout any compensation to you. You (i) IN NO EVENT SHALL (I) EITHER
further acknowledge that, by acceptance of your PARTY., (II) ITS RESPECTIVE SUPPLIERS OR
suggestions for any feature or aspect of the Platform or LICENSORS, AS APPLICABLE OR (III) ANY OF THE
the API,Amilia does not waive any rights to use similar or RESPECTIVE AFFILIATES, AGENTS,
related ideas previously known to Amilia,or developed by SHAREHOLDERS, DIRECTORS, OFFICERS AND
your employees, or. obtained from sources other than EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I)
yours. OR (II) ABOVE, BE LIABLE FOR ANY LOST PROFITS,
LOSS . OF DATA, OR ANY INDIRECT, PUNITIVE,
6. Liability INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
a. Amilia Liability. To the full extent permitted EXEMPLARY DAMAGES ARISING OUT OF, IN
by applicable law and subject to Section 6.c.,Amilia,at its . CONNECTION WITH OR RELATING TO THIS
own expense, will defend and indemnify you from and AGREEMENT OR THE PLATFORM OR THE API.
against all claims, suits and proceedings ("Claims") (I) (ii) UNDER NO CIRCUMSTANCES WILL
alleging that the Platform,and your use of the Platform in AMILIA BE RESPONSIBLE FOR: (A)ANY DAMAGE OR
accordance with this Agreement, infringes the Intellectual LOSS RESULTING FROM HACKING, TAMPERING OR
Property Rights or Other rights of,or has caused harm to, OTHER UNAUTHORIZED ACCESS OR USE OF THE
a third party;(ii)arising out of Amilia's breach of Section 4 PLATFORM, THE API, YOUR ACCOUNT,. THE
(Confidential Information);. (iii) arising out of Amilia's PLATFORM SERVERS OR ANY INFORMATION
breach of Section 1.g. (Amilia Representations and CONTAINED THEREIN (EXCEPT FOR BREACHES OF
Warranties); or(iv) arising out of the negligence or wilful AMILIA'S OBLIGATIONS DESCRIBED IN. SECTION
misconduct by its employees or agents. If a Claim is 1.e.); (B) LOSS OR PROPERTY DAMAGE, OF ANY
brought or threatened against you alleging infringement of NATURE WHATSOEVER, RESULTING FROM YOUR
the Intellectual Property Rights of a third party,Amilia will, ACCESS TO OR USE OF THE PLATFORM OR THE API
at its sole option and expense, use commercially (EXCEPT TO THE EXTENT SUCH LIMITATION IS NOT
reasonable efforts either(a)to procure a license that will PERMITTED BY APPLICABLE LAW); (C)
protect you against such Claim without cost to you; (b)to INTERRUPTION OR CESSATION 'OF TRANSMISSION
modify or replace all or portions of the Platform as needed TO OR FROM THE PLATFORM OR THE API, NOT
to avoid infringement,such update or replacement having CAUSED BY THE GROSS NEGLIGENCE OF AMILIA;
substantially similar or better capabilities; or(c) if(a) and (D) ANY SOFTWARE BUGS, VIRUSES, TROJAN
(b) are not commercially feasible, terminate the HORSES, OR OTHER HARMFUL CODE THAT MAY BE
Agreement.The rights and remedies granted to you in this TRANSMITTED TO OR THROUGH THE PLATFORM OR
section state Amilia's entire liability, and are your THE API,NOT CAUSED BY THE GROSS NEGLIGENCE
exclusive remedy, with respect to any claim of OF AMILIA; (E) ERRORS, INACCURACIES OR
infringement of the Intellectual Property Rights of a third OMISSIONS IN ANY CONTENT OR INFORMATION
party. PROVIDED BY YOU OR ANY THIRD PARTY, AND/OR
b. Your Liability.To the full extent permitted by (F) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL
applicable law and subject to Section 6.c.,you will, at your CONDUCT OF ANY THIRD PARTY.
own expense, defend and indemnify Amilia, its (iii) WITHOUT LIMITING THE
shareholders, affiliates, directors, officers, affiliates, FOREGOING.PROVISIONS OF THIS SECTION AND
, agents, employees and representatives (the "Amilia EXCEPT FOR LIABILITY ARISING OUT OF THE
Parties") harmless from and against all Claims (i)alleging GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF
that your data or any of your trademarks, or Amilia's use AMILIA,THE CUMULATIVE LIABILITY OF(I)AMILIA, (II)
thereof in accordance with this Agreement, infringes the SUPPLIERS OR LICENSORS OF AMILIA,AND (III)ANY
Intellectual Property Rights or other rights of, or has OF THE RESPECTIVE AFFILIATES, SHAREHOLDERS,
caused harm to,a third party;(ii)arising out of your breach AGENTS, DIRECTORS, OFFICERS AND EMPLOYEES
of Section 4 (Confidential Information); (iii) arising out of OF ANY OF THE ENTITIES LISTED IN(I)OR(II)ABOVE
your access to or use of the Amilia Solution other than in SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL
accordance with the terms of this Agreement; (iv) arising EVENTS SHALL NOT EXCEED IN THE AGGREGATE
out of your breach of Section 2 e) (Your Representations THE AMOUNT OF LICENSE FEES PAID BY YOU TO
and Warranties); or (v) arising out of the negligence or AMILIA DURING THE THREE (3) MONTH PERIOD -
wilful misconduct by you or any of your employees or IMMEDIATELY PRECEDING THE EVENT GIVING RISE
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TO THE CLAIM FOR LIABILITY OR THE LOSS. THE agreements, representations or warranties made by the
LIMITATIONS APPLY EVEN. IF AMILIA HAS BEEN other party.
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. g. Successors and Assignment. This
d. Amilia Insurance coverage.Amilia will, at its Agreement is binding upon the parties and their
expense and at all times during the Initial Term or any. respective successors and permitted assigns.
Renewal Term, hold , and maintain commercially h. Parties. Third Party Platforms and Links to
reasonable insurance policies. The limits set forth below Other Websites. You may be-offered services, products
do not in any way limit liability assumed elsewhere in this and promotions provided by third parties and not by
Agreement. Amilia, and the Amilia website may contain links to third-
7. General Terms party websites as a convenience to you. If you decide to
a. Disputes; Choice of Law; Jurisdiction and use these third-party services, you will be responsible for
Venue. The validity of this Agreement, the construction reviewing and understanding the terms and conditions
and enforcement of its terms,and the interpretation of the associated with these services. Amilia is not responsible
rights and duties of the parties shall be governed by the for the performance of these services and does not
laws of the State of Delaware,without regard to conflict of approve of, endorse, or warrant the performance of these
law rules. The parties hereto agree to the exclusive services.When you use any such link to go from Amilia's
jurisdiction of the courts of the State of Delaware for any websites to another website, the Amilia Privacy Policy is
legal controversy arising in connection with this no longer in effect.
Agreement. NOTWITHSTANDING ANY PROVISIONS I. Force Majeure. "Force Majeure Event"
TO THE CONTRARY IN THIS PROVISION, IN THE means fire, telecommunications failures, utility failures,
EVENT`.OF ANY VIOLATION OF THIS AGREEMENT, power failures,equipment failures,labour strife,riots,war,
EITHER PARTY MAY INITIATE AN ACTION SEEKING terrorist attack, public health emergency, non-
INJUNCTIVE RELIEF BEFORE ANY COURT OF performance of vendors or suppliers,acts of God or other
COMPETENT JURISDICTION. cause over which the Affected Party has no reasonable
b. No Waiver or Limitation. A party's failure to control. If either party (an "Affected Party") is delayed
assert any right or provision under this Agreement shall from performing any of its obligations (except payment
not constitute a waiver of such right or provision. This obligations) under this Agreement because of a Force
Agreement does not limit any rights that either party may Majeure Event then performance is excused for the period
have under trade secret, copyright, patent,or other laws. of the delay to the extent the delay is due to a Force
c. Right to Change.At any time during the Initial Majeure Event and the Affected Party will not be in default
Term or any Renewal Term, Amilia has the right to under this Agreement.. As soon as reasonably practicable
change, delete, discontinue, or impose conditions on any after the start of a Force Majeure Event,the Affected Party
feature or aspect of the Platform or the API that Amilla in will give to the other party written notice of the nature and
its sole discretion deem to be reasonable in the expected duration of such event. If the delay continues
circumstances,including by way of a notice on its website, for more than 15 days, then the party entitled to
by email or any other website maintained or owned by performance may give to the Affected Party notice. of
Amilia for the purposes of providing services in connection immediate termination of this Agreement.
with this Agreement, provided that the Platform shall j. Entire Agreement. These terms and
continue to perform substantially in accordance with the conditions and the content of this Agreement to which this
Documentation. Any use of the Platform after its Appendix A is attached constitute the entire agreement
publication of any such changes shall, constitute your between theparties with respect to the matters covered
acceptance of such change. by such Software License Agreement and this Appendix
d. Amendment. Unless otherwise stated in this A.
Agreement, this Agreement may not be amended or k. Severability. Whenever possible, each
modified except in writing signed by both parties. provision or portion of any provision of this Agreement
e. Disclosures and Notices. You agree and shall be interpreted in such manner as to be effective and
accept that Amilia can provide disclosures and notices valid under applicable law, but if any provision or portion
regarding the Platform and the API to you by posting such of any provision of this Agreement is held to be invalid,
disclosures and notices onits website or emailing them to illegal or unenforceable in any respect under any
the administrator's email address listed in your Account. applicable law or rule in any jurisdiction, such invalidity,
Any use of the Platform after its publication of any such illegality or unenforceability shall not affect any other
changes shall constitute your acceptance of such change. provision or portion of any provision in such jurisdiction,
f. Independent Contractor. Nothing in this and this Agreement shall be reformed, construed and
Agreement shall be construed in any manner to create enforced in such jurisdiction as if such invalid, illegal or
between the parties the relationship of joint venturers or unenforceable provision or portion of any provision had
partners, employer and employee, master or servant. never been contained herein.
Neither party shall be obligated nor boundby any
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I. Survival. Any provision that is reasonably
necessary to accomplish or enforce the purpose of this
Agreement remain in effect inaccordance with its terms
upon the termination of this Agreement, including without
limitation Sections 3 and 4 of this Agreement.
m. Currency. Monetary, amounts stated,
advanced, paid or calculated in or pursuant to this
Agreement are and shall be stated, advanced, paid or
calculated in United States dollars.
Counterpart.This Agreement may be executed in any
number of counterparts, and each such counterpart
hereof will be deemed to be an original instrument, but
all such counterparts together will constitute but one
agreement. Transmitted copies (reproduced documents
that are transmitted via photocopy,facsimile or any other
process that accurately transmits the original,for
example by email receipt of scanned documents) are
considered documents equivalent to original documents
and signatures so transmitted and received shall be
treated for all purposes of this Agreement as original
signatures and shall be deemed valid, binding, and
enforceable by andagainstthe parties
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