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AMPLIFY PROFESSIONAL SERVICES


THIS MASTER SERVICES AGREEMENT (“MSA”) is entered into by you (“Client”) as evidenced by your use of the Services (defined below). “Client” shall include Client’s corporate subsidiaries, as well as corporate parents, affiliates, and other related entities (collectively, “Affiliates”) approved by Amplify to receive Services under this MSA. For purposes of this MSA the term “Amplify” shall mean Amplify Professional Services. Amplify and Client agree to the following terms and conditions:


1. Services

1        All services provided by Amplify under this MSA (the “Services”) will be described in one or more Statements of Work (“SOW”).

2        The MSA and each SOW will be interpreted as a single agreement, independent of each other SOW, so that all of the provisions are given as full effect as possible. In no event will the description of Services under any SOW be deemed by implication or otherwise to exclude any Services described in this MSA or another SOW.

a        In the event of a conflict between the terms of the MSA and a SOW, the terms of these documents will be interpreted according to the following order of precedence: (1) SOWs and (2) the MSA.


2. Terms of Purchase

1        Prices. Pricing is determined by scope and complexity of each individual SOW.  Amplify and Client will agree to project pricing and methodology in advance of project execution.

2        Additional Fees; Taxes. Client shall be responsible for all applicable taxes and fees assessed or imposed upon the Services provided or the amounts charged under this MSA, including any sales, use, excise, value-added, or comparable taxes, but excluding taxes related to Amplify’s net assets or net income or for which Client has provided a valid resale or exemption certificate. Should any payments to Amplify become subject to withholding tax, then Client shall deduct these taxes from the amount owed to Amplify and pay the taxes to the appropriate tax authority in accordance with the laws thereof. Client shall promptly provide Amplify with receipts or other applicable evidence of substantiating the payments as required under the laws of the applicable taxing authority. Amplify shall not be liable for any withholding tax, penalty, or interest due as a result of Client’s failure to withhold any applicable tax.

3        Invoicing and Payment. Client’s payment terms will be Due On Receipt (DOR), subject to continuing credit approval by Amplify. Client will pay Amplify in US dollars, as invoiced by Amplify. Additional charges may apply if Client requests services that are performed outside contracted hours or are beyond the normal coverage for the particular service.

4        Nonpayment. For invoices not paid within thirty (30) days of the invoice date, Amplify reserves the right to charge Client a late penalty charge of one and a half percent (1.5%) per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, Amplify, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate the Services until such payment is received and may decide not to accept additional orders from Client and/or seek collection of all amounts due, including reasonable legal fees and costs of collections. Amplify shall have no liability to Client for any such suspension or termination of Services, or non-acceptance of orders.


3. Term & Renewal

1        This MSA has a one year term, beginning on the the date executed. The MSA will automatically renew on the anniversary of the Effective Date for subsequent one year terms (“Term”) unless terminated in accordance with Section 4 below.


4. Termination

1        Either party may terminate this MSA for convenience by providing at least thirty (30) days prior written notice to the other. Termination of this MSA for convenience will not terminate any outstanding SOW that provides for a specific term over which the Services are to be provided. In such case, this MSA, as incorporated into the SOW, and the SOW that provides for a specific term will remain in effect for the remainder of such term. Upon termination of this MSA, all rights and obligations of the parties under this MSA will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination.

2        Either party may terminate an individual SOW if the other party commits a material breach of such agreement and the breach is not cured within thirty (30) days of receipt of written notice from the injured party. Termination of one or more SOWs will not terminate this MSA.


5. Proprietary Rights

1        Amplify delivers business value through a proprietary methodology and process.

2        Deliverables. Except as otherwise specifically agreed to in a SOW, Amplify will retain exclusive ownership in all Deliverables created by Amplify hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how, documentation or techniques developed by Amplify under this MSA. Subject to payment in full for the applicable Services, Amplify grants Client a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country(ies) in which Client does business and solely for Client’s internal use. “Deliverables” means the tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations that are prepared by Amplify or its subcontractors in the course of performing the Services.

3        Tools & Software. Amplify will retain all intellectual property rights with respect to the processes, tools and software related to the Services. Any use by Client, including the execution, reverse engineering, decompilation, reproduction, modification, distribution, transmission, republication, display, transfer or performance, except as specifically permitted by Amplify during the term of Services is prohibited


6. Client Responsibilities

1        It is the Client’s responsibility to backup data on Client’s system(s). Client acknowledges that Amplify’s performance and delivery of the Services are contingent upon:

a        Client providing safe and hazard-free access to its personnel, facilities, equipment, hardware, software, network and information for Services to be performed at Client’s location, and

b        Client’s timely decision-making, notification of relevant issues or information and granting of approvals or permissions. Client will promptly obtain and provide to Amplify any required licenses, approvals or consents necessary for Amplify’s performance of the Services.


7. Confidentiality

1        In the performance of the Services, Client and Amplify may have access to or be exposed to information of the other party not generally known to the public, including, but not limited to software, product plans, marketing and sales information, Client lists, “know-how,” or trade secrets which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, “Confidential Information”). Confidential Information may not be shared with third parties unless such disclosure is to personnel of Amplify or Client, including employees, agents and subcontractors, on a “need-to-know” basis in connection with its performance of this MSA, so long as such personnel have agreed to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a like-kind nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality, and shall only make such information available to its employees on a “need-to-know” basis. The foregoing shall not include information, which,

a        was known by one party prior to its receipt from the other or is or becomes public knowledge without the fault of the recipient,

b        is received by the recipient from a source other than a party to this MSA, or

c          a party is required to disclose in response to an order by a court or governmental agency, provided that advance notice of the disclosure is provided to other party.

2        The obligations with respect to Confidential Information shall continue for three (3) years from the date of disclosure.


8. LIMITED WARRANTY & LIMITATION OF LIABILITY; HIGH-RISK DISCLAIMER

1        Limited Warranty. Amplify WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER.EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, Amplify (INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND AGENTS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE "Amplify PARTY(IES)")MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE SERVICES OR DELIVERABLES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT; ANY WARRANTY RELATING TO THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES; OR ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION THE Amplify PARTIES MAY MAKE.

2        Limitation of Liability. NEITHER THE Amplify PARTIES NOR Client WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY Amplify. WHETHER DIRECT OR INDIRECT, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING, (A) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK, OR THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTUNITY, (D) BUSINESS INTERRUPTION OR DOWNTIME, OR (E) SERVICES, Amplify PRODUCTS OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE BY Client. THE Amplify PARTIES’ AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ALL CLAIMS OF LIABILITY ARISING OUT OF, OR IN CONNECTION WITH ANY SERVICE PROVIDED PURSUANT TO THIS MSA SHALL NOT EXCEED THE AMOUNTS PAID BY Client FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE (12) MONTH PERIOD. EACH PARTY ACKNOWLEDGES THAT THESE LIMITATIONS APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, THE FEE FOR THE SERVICES PROVIDED HEREUNDER WOULD BE HIGHER.


9. Indemnification

1        Amplify shall defend, indemnify and hold harmless Client from any third-party claim or action that the Services or any Deliverables (excluding Third-Party Products) prepared or produced by Amplify and delivered pursuant to this Agreement infringe or misappropriate that third party’s patent, copyright, trade secret, or other intellectual property rights enforceable in the country(ies) in which the Services or Deliverables are sold to Client by Amplify (“Indemnified Claims”). In addition, if Amplify receives notice of a claim that, in Amplify’s reasonable opinion, is likely to result in an adverse ruling, then Amplify shall at its option, (A) obtain a right for Client to continue using such Service or Deliverable; (B) modify such Service or Deliverable to make it non-infringing; (C) replace such Service or Deliverable with a non-infringing equivalent; or (D) refund any prepaid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated refund for the allegedly infringing Deliverable. Notwithstanding the foregoing, Amplify shall have no obligation under this Section for any claim resulting or arising from (A) Client’s modifications of the Services or Deliverables that were not performed by or on behalf of Amplify; (B) the combination, operation or use of the Service or Deliverable in connection with a third-party product or service (the combination of which causes the infringement); or (C) Amplify’s compliance with Client’s written specifications or directions, including the incorporation of any software or other materials or process provided by or requested by Client.

2        Client shall defend, indemnify and hold Amplify harmless from, any third-party claim or action arising out of (A) the failure of Client to obtain the appropriate license, intellectual property rights, or any other permissions, regulatory certifications or approvals associated with Client provided technology, software or other components related to the Service, as well as software directed or requested by Client to be installed or integrated as part of Services, or (B) any inaccurate representations regarding the existence of an export license or any allegation made against Amplify due to Client’s violation or alleged violation of applicable export laws, regulations, and orders.

3        Each party agrees to indemnify and hold harmless the other party from any third-party claim or action for personal bodily injuries, including death, resulting from the indemnifying party’s gross negligence or willful misconduct resulting from the Services (excluding Third-Party Products) provided hereunder. This section states each party’s exclusive remedies for any third-party claim or action, and nothing in this MSA or elsewhere will obligate either party to provide any greater indemnity to the other.


10. Important Additional Terms

1        Independent Contractor Relationship; MSA Assignment; Subcontracting. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this MSA. Amplify has the right to assign, subcontract or delegate in whole or in part this MSA, or any rights, duties, obligations or liabilities under this MSA, by operation of law or otherwise, provided that Amplify shall remain responsible for the performance of Services under this MSA. Otherwise, neither party may assign this MSA without the permission of the other.

2        Hiring of Amplify Consultants.   Client agrees that the individual employed by or provided by Amplify to Client shall not be employed, retained, or hired as an employee, subcontractor or in any other capacity by Client.  If during the term of this Agreement or for a period of 12 months after the expiration or cancellation of this agreement Client directly hires or retains an Amplify Consultant as an employee or independent contractor, the following conversion fee shall apply:

            30% of annual base salary, invoiced on the start date and payable within 30 days.

3        Entire Agreement; Severability; Section Headings. This MSA and SOWs is the entire agreement between Amplify and Client with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements. No amendment to or modification of this MSA, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this MSA is void or unenforceable, the remainder of this MSA will remain in full force and effect. Section headings are for reference only and shall not affect the meaning or interpretation of this MSA.

4        Force Majeure. Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment obligations) under this MSA during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, earthquake, war, embargo, strike, riot or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure events lasts longer than thirty (30) days, the other party may immediately terminate the applicable SOW by giving written notice to the delayed party.

5        Notices. Notice to Amplify under this MSA must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (incl. facsimile or electronic) as specified in writing and will be effective upon receipt.

 

Amplify Professional Services

Attn: Contracts Manager

22337 Pacific Coast Highway #488

Malibu, CA  90265

 

6        Governing Law, Forum and Language. THE PARTIES AGREE THAT THE MSA, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN Client AND Amplify arising from or relating to the MSA, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW. The parties agree that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the MSA shall be brought exclusively in the courts located in Los Angeles County, California. Client and Amplify agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts. This MSA will be interpreted and construed in accordance with the English language.

7        Dispute Resolution. Client and the Amplify Parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to this MSA, Amplify’s advertising, or any related purchase (a “Dispute”) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity.

8        Limitation Period. Neither party may institute any action in any form arising out of this MSA more than one (1) year (365 calendar days) after project completion per individual SOW.

9        Updates. Amplify reserves the right to update its MSA at any time, effective upon posting an updated version at www.Amplifyrt.com/MSA; however, Client’s rights and obligations shall be as provided in the version of the MSA executed by Client or available to Client at the time of Client’s purchase of Services or, when applicable, Client’s renewal of Services.

10    Counterparts. If a signature block is appended hereto, this MSA may be executed in counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.






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