These Amperfii Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of our Amperfii Products.

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These Terms are between you and Amperfii Pty Ltd ACN: 638 290 436 (“Amperfii”, “we” or “us”). “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you.

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IF YOU SIGN UP FOR AN AMPERFII PRODUCT USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.

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These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access an Amperfii Product, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for an Amperfii Product, create an Amperfii Product account, or place an Order.

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1. What these Terms cover.

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These Terms govern our Amperfii Products, related Support, and Additional Services. These Terms include Our Policies (including our Privacy Policy) and your Orders.

 

2. How Amperfii Products are administered.

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2.1. Administrators. Through the Amperfii Products, you may be able to specify certain End Users as Administrators, who will have important rights and controls over your use of Amperfii Products and End User Accounts. This may include making Orders for Amperfii Products; creating, de-provisioning, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access to Your Data by End Users or others. Without limiting Section 2.3 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Amperfii Products for you.

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2.2. End User Consent. You will provide all required disclosures to and will obtain and maintain all required consents from End Users to allow: (i) Administrators to have the access described in these Terms and the Privacy Policy; and (ii) Amperfii’s provision of the Amperfii Products to Administrators and End Users. You will provide evidence of such consents upon our reasonable request.

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2.3. Responsibility for End Users. You are responsible for understanding the settings and controls for each Amperfii Product you use and for controlling whom you allow to become an End User. If payment is required for End Users to use or access Amperfii Product, then we are only required to provide the Amperfii Products to those End Users for whom you have paid the applicable fees, and only such End Users are permitted to access and use the Amperfii Products. You are responsible for compliance with these Terms by all End Users, including for any payment obligations. Please note that you are responsible for the activities of all your End Users, including Orders they may place and how End Users use Your Data.

 

2.4. Credentials. We will use email addresses provided by Your organisation to create accounts for End Users. An End User’s work email address (and their password) will allow them to access Amperfii Products, via Your organisation’s network. You are responsible for which (and how) End Users access Amperfii Products via Your organisation’s network, and for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.

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3. What's included in your Amperfii Product subscriptions; what are the restrictions.

 

3.1. Access to Amperfii Products. Subject to these Terms and during the applicable Subscription Term, you may access and use the Amperfii Products for your own business purposes, in accordance with these Terms, the applicable Order and the Documentation. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.

 

3.2. Support. During the Subscription Term, we will provide Support for the Amperfii Products in accordance with the Support Policy (to the extent applicable), and the applicable Order.

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3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the Amperfii Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Amperfii Products to a third party; (c) use the Amperfii Products for the benefit of any third party; (d) incorporate any Amperfii Products into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Amperfii Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or nonpublic APIs to any Amperfii Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Amperfii Product; (h) use the Amperfii Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Amperfii Products; or (j) encourage or assist any third party to do any of the foregoing.

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4. Our security and data privacy policies.

 

4.1. Security and Certifications. We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure.

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4.2. Privacy. We collect certain data and information about you and your End Users in connection with you and your End Users’ use of the Amperfii Products and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy, which you acknowledge.

 

4.3. Improving Amperfii Products. We are always striving to improve the Amperfii Products. In order to do so, we use analytics techniques to better understand how our Amperfii Products are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.

 

4.4. Legal Disclosures. Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, but we will use commercially reasonable efforts to notify you where permitted to do so.

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5. Terms that apply to Your Data.

 

5.1. Using Your Data to provide Amperfii Products to You. You retain all right, title and interest in and to Your Data in the form submitted to the Amperfii Products. Subject to these Terms, and solely to the extent necessary to provide the Amperfii Products to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in an Amperfii Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and your Amperfii Products with End User permission in order to respond to your support requests.

 

5.2. Your Data Compliance Obligations. You and your use of Amperfii Products (including use by your End Users) must comply at all times with these Terms and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Amperfii Products and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Amperfii Products.

 

5.3. Your Indemnity. You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.2 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of Amperfii Products, (ii) your breach (or alleged breach) of Section 5.2 (Your Data Compliance Obligations); or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.

 

5.4. Removals and Suspension. We have no obligation to monitor any content uploaded to the Amperfii Products. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, or in response to takedown requests that we receive, we may (1) remove Your Data from the Amperfii Products or (2) suspend your access to the Amperfii Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Amperfii Product or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Amperfii Products as described in this Section 5.4.

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6. Additional Services.

 

6.1. Additional Services. Subject to these Terms, you may purchase Additional Services (such as implementation assistance, training or consulting) that we will provide to you pursuant to the applicable Order and any other terms we agree in writing.

 

6.2. Our Deliverables. We will retain all right, title and interest in and to Our Deliverables. You may use any of Our Deliverables provided to you only in connection with the Amperfii Products, subject to the same usage rights and restrictions as for the Amperfii Products. For clarity, Our Deliverables are not considered Amperfii Products, and any Amperfii Products are not considered to be Our Deliverables.

 

7. Billing, renewals, and payment.

 

7.1. Monthly and Annual Plans. Amperfii Products are offered either on a monthly subscription basis or an annual subscription basis.

 

7.2. Renewals. Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the Amperfii Products, email or contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Amperfii Product continuing to be offered and will be charged at the then-current rates.

 

7.3. Adding Users. You may add users, increase storage limits, or otherwise increase your use of Amperfii Products by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.

 

7.4. Payment. You will pay all fees in accordance with each Order, by the due dates specified in the Order. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to Amperfii by emailing the PO number to admin@amperfii.com.

 

7.5. GST and other Taxes. Your fees under these Terms exclude any GST or other taxes or duties payable in respect of the Amperfii Products. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms. We will give you a tax invoice that complies with the Australian GST law.

 

7.6. Delivery. We will deliver the login instructions for Amperfii Products to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.

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8. IP Rights in the Amperfii Products and Feedback.

 

Amperfii Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Amperfii Products). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

 

9. Confidentiality.

 

Except as otherwise set forth in these Terms, each party agrees that all non-public software features, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Amperfii Products will be deemed our Confidential Information without any marking or further designation. Any of Your Data is also deemed your Confidential Information.

 

Except as expressly authorized in these Terms, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than these Terms and that the Receiving Party remains responsible for compliance by them with these Terms. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

 

10. Term and Termination.

 

10.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.

 

10.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) is subject to any insolvency event (including having an administrator, liquidator or receiver appointed) or there are reasonable grounds for believing it is unable to pay its debts when they fall due.

 

10.3. Termination for Convenience. You may choose to stop using the Amperfii Products and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, but, Page 8 of 15 upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

 

10.4. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using all Amperfii Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the Amperfii Products during the applicable Subscription Term. If you terminate these Terms in accordance with Section 10.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Section 10.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.

 

10.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.3 (Your Indemnity), 7.4 (Payment), 7.5 (GST and other taxes), , 9 (IP Rights in the Amperfii Products and Feedback), 9 (Confidentiality), 10 (Term and Termination), 11.4 (Warranty Disclaimer), 12 (Limitations of Liability), 13 (IP Indemnification) (but solely with respect to claims arising from your use of Amperfii Products during the Subscription Term), and 15 (General Terms).

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11. Warranties and Disclaimer.

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11.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.

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11.2. Our Warranties. We warrant, for your benefit only, that: (a) we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Amperfii Products (but we are not responsible for harmful materials submitted by you or End Users); and (b) the Amperfii Products, when used according to these Terms and the Documentation, will perform materially according to the Documentation (collectively, the “Performance Warranty”).

 

11.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty within a reasonable time (based on the severity of the non-conformity). If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Amperfii Product for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, or (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 11.

 

11.4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, ALL AMPERFII PRODUCTS, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE AMPERFII PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE AMPERFII PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

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12. Limitation of Liability.

 

12.1. Consequential Loss Exclusion. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST REVENUE OR PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

 

12.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF ANY AND ALL CLAIMS RELATED TO THESE TERMS WILL NOT EXCEED 125% OF THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

 

12.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms (including Sections 5.3 (Your Indemnity) and 13 (IP Indemnification)), and (3) your breach of Section 3.3 (Restrictions).

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13. IP Indemnification.

 

13.1. We will defend you against any claim brought against you by a third party alleging that the Amperfii Products, when used as authorized under these Terms, infringe any third-party patent, copyright or trademark, or misappropriates any third-party trade secret (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable legal fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defence and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for evidence; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the Claim.

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13.2. If your use of the Amperfii Products is (or in your opinion is likely to be) prevented, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Amperfii Product in accordance with these Terms; (ii) substitute a substantially functionally Page 11 of 15 similar Amperfii Product; or (iii) terminate your right to continue using the Amperfii Product and refund any prepaid amounts for the terminated portion of the Subscription Term.

 

13.3. Our indemnification obligations above do not apply: (1) if the Amperfii Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (2) if the Amperfii Product is used in combination with any non-Amperfii product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of Amperfii Products; (4) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 5.3 (Your Indemnity) or (z) any third-party deliverables or components contained with the Amperfii Products; (5) if you settle or make any admissions with respect to a Claim without our prior written consent; or (6) to any Claim made by you or a Affiliate of you.

 

13.4. THIS SECTION 13 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY AMPERFII PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.

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14. Changes.

 

14.1. Changes to these Terms. We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 15.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.

 

14.2. Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 7.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Amperfii Products for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

 

14.3. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.

 

14.4. Changes to the Amperfii Products. You acknowledge that the Amperfii Product is an on-line, subscription-based product, and that in order to provide improved customer experience we may make changes to the Amperfii Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Amperfii Products and Additional Services under existing Orders, we can discontinue any Amperfii Products, any Additional Services, or any portion or feature of any Amperfii Products for any reason at any time without liability to you.

 

15. General Terms.

 

15.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by email to admin@amperfii.com.

 

15.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, pandemic or public health emergency, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

 

15.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to Affiliate, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms.

 

15.4. Entire Agreement. These Terms are the entire agreement between you and us relating to the Amperfii Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Amperfii Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.

 

15.5. Conflicts. In event of any conflict between the main body of these Terms and Our Policies (or a separate written agreement signed on behalf of us), then Our Policies (or the separate agreement) will control with respect to their subject matter.

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15.6. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 14 (Changes), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.

 

15.7. Interpretation. In these Terms, “including” (and similar expressions) means “including without limitation”. Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

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15.8. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

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15.9. Governing Law & Jurisdiction. These terms of use, their subject matter and their formation, are governed by the laws of Victoria, Australia. You and we both agree that the courts in Victoria will have exclusive jurisdiction.

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16. Definitions.

 

Certain capitalized terms are defined in this Section 16, and others are defined contextually in these Terms.

 

“Administrators” mean the personnel designated by you who administer the Amperfii Products to End Users on your behalf.

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“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

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“Amperfii Products” means our hosted or cloud-based solutions as set out in an Order Form.

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“Documentation” means our standard documentation for the Amperfii Products, as made available to End Users or published by us from time to time.

 

“End User” means an individual who you or an Affiliate permits or invites to use the Amperfii Products.

 

“End User Account” means an account established by you or an End User to enable the End User to use or access an Amperfii Product.

 

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Amperfii Products, Support or Additional Services.

 

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

 

“Notification Email Address” means the email address(es) you used to register for an Amperfii Product account or otherwise sign up for an Amperfii Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.

 

“Order” means Amperfii’s ordering document describing the products and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Order will identify: (i) the Amperfii Products, (ii) the number of End Users, Subscription Term, or other scope of use parameters and (iii) the amount or rate you will be charged, the billing and renewal terms, and form of payment. Orders may also include Additional Services.

 

“Our Deliverables” means any materials, deliverables, modifications, derivative works or developments that we provide in connection with any Additional Services.

 

“Our Policies” means our Privacy Policy, Support Policy and (unless specified) any other policies or terms referenced in these Terms.

 

“Our Technology” means the Amperfii Products, Our Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

 

“PO” means a purchase order.

 

“Subscription Term” means your permitted subscription period for an Amperfii Product, as set forth in the applicable Order.

 

“Support” means support for the Amperfii Products, as further described in our Documentation and Support Policy.

 

“Your Data” means any data, content, images or other materials of any type that you (including any of your End Users) submit to Amperfii Products. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Amperfii Products.

 

“Your Materials” means your materials, systems, personnel or other resources