Terms of Service

Effective Date: April 21, 2022

Terms of Service 

IMPORTANT NOTICE: THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE SECTION 9 ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW.  PLEASE READ CAREFULLY.

Thank you for using the Amplitude Services (defined below) provided by Amplitude, Inc. (“Amplitude”).  Please review these Terms of Service carefully.  These Terms of Service incorporate the Data Processing Addendum for Terms of Service (located at https://www.amplitude.com/terms/dpa, “TOS DPA“) and the Acceptable Use Policy (located at https://www.amplitude.com/aup, “AUP“); collectively, the Terms of Service, TOS DPA and AUP make up the “Terms“.  

YOU INDICATE YOUR ASSENT TO THESE TERMS BY ANY OF THE FOLLOWING: CLICKING “I AGREE” (OR SIMILAR BUTTON OR CHECKBOX) AT THE TIME YOU REGISTER FOR THE AMPLITUDE SERVICES, BY CREATING AN AMPLITUDE ACCOUNT, OR BY ACCESSING OR USING THE AMPLITUDE SERVICES IN ONE OF THE FREE PROGRAMS (SET OUT BELOW) OFFERED BY AMPLITUDE.  THESE TERMS ARE EFFECTIVE AS OF THE DATE YOU FIRST CLICK “I AGREE” (OR SIMILAR BUTTON OR CHECKBOX), CREATE AN AMPLITUDE ACCOUNT, OR USE OR ACCESS THE AMPLITUDE SERVICES, WHICHEVER IS EARLIEST (THE “EFFECTIVE DATE”). 

If you have a paid subscription to use the Amplitude Services pursuant to a separate written agreement with Amplitude, these Terms will not apply to you or your use of the Amplitude Services.

In these Terms, “you,” “your” and “Customer” refers to you and/or the organization using the Amplitude Services or on whose behalf the Amplitude account has been registered.  If you register for an Amplitude account or use the Amplitude Services on behalf of an organization, you agree to these Terms for that organization and represent to Amplitude that you have the authority to bind that organization to these Terms.

“Amplitude Services” mean the Amplitude software-as-a-service product(s), but for clarity excludes Third-Party Products.  “Third-Party Products” mean non-Amplitude products or web-based, mobile, offline or other software applications or services that Customer chooses to integrate with or use in connection with the Amplitude Services.   

EXCEPT FOR SECTION 9, PROVIDING FOR BINDING ARBITRATION AND WAIVER OF CLASS ACTION RIGHTS, AMPLITUDE RESERVES THE RIGHT TO MODIFY THESE TERMS FROM TIME TO TIME.  THE MOST CURRENT VERSION OF THESE TERM WILL BE POSTED TO OUR WEBSITE AND ANY UPDATED VERSION OF THESE TERMS WILL SUPERCEDE ALL PREVIOUS VERSIONS.  THE UPDATED TERMS WILL BECOME EFFECTIVE AS OF THE POSTING DATE.  NO SEPARATE NOTICE WILL BE REQUIRED, AND YOUR CONTINUED USE OF THE AMPLITUDE SERVICES AFTER THE UPDATED VERSION OF THE TERMS IS POSTED WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH UPDATED TERMS.

1.1 – Access to Amplitude Services

Subject to these Terms, Amplitude hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, non-assignable right to access and use the Amplitude Services for Customer’s internal business purposes only.

1.2 – Reservation of Rights

Amplitude retains all right, title, and interest (including, but not limited to, intellectual property rights) in and to the Amplitude Services, and all improvements, enhancements or modifications to the foregoing, and anything developed and delivered under these Terms, including System Data.  “System Data” means data and information collected, derived, or otherwise generated by the Amplitude Services that has been anonymized, de-identified, and/or aggregated so as not to identify or permit identification of an individual.  For the avoidance of doubt, Amplitude may use, modify, and display System Data, provided, however, Amplitude will not publicly disclose or distribute System Data unless it is aggregated in a manner that does not permit the identification of Customer.  No rights are granted to Customer hereunder except as expressly set forth in these Terms. 

1.3 – Customer Data License

Customer shall own all right, title and interest in and to the Customer Data.  “Customer Data” means data and other content submitted by or for Customer to the Amplitude Services, including Customer’s end user data.  For the avoidance of doubt, Customer Data does not include System Data or any dashboards, report templates or other technology or components of the Amplitude Services created, developed, used or provided by Amplitude.  Customer hereby grants Amplitude a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to host, copy, use, transfer and process the Customer Data as necessary in order for Amplitude to provide the Amplitude Services and to support Customer under these Terms.

1.4 – Feedback

Customer may from time to time provide Amplitude suggestions or comments for enhancements or improvements, new features or functionality or other feedback (collectively, “Feedback“) with respect to the Amplitude Services.  Amplitude will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Customer hereby grants Amplitude an unlimited, irrevocable, perpetual, sublicensable, royalty-free license, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback without restriction.

1.5 – Data Privacy and Protection of Customer Data

The parties agree that the provisions contained in the TOS DPA govern the processing of personal data in connection with these Terms.  As set forth in the TOS DPA, Amplitude will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of personal data submitted to the Amplitude Services as Customer Data, including measures designed to prevent unauthorized access to or use or disclosure of such personal data.

(i) Free Trials/Beta Services

If Customer registers for or is provided access to the Amplitude Services as part of: (a) a free trial, or (b) “alpha,” “beta” or other “early-stage” Amplitude services, products, integrations, functionality or features (collectively, “Beta Services”), then such Amplitude Services will be available to Customer on a no-cost basis for the period of time set forth in the documentation associated with the free trial or Beta Services (if applicable), unless terminated sooner as set out in these Terms.  

(ii) Starter Program

If Customer registers for Amplitude’s Starter Program, Amplitude will make the Amplitude Services available to Customer on a no-cost basis from Customer’s date of registration until the earlier of: (a) the end of the free period for which Customer has registered to use the Amplitude Services, or (b) the start date of any purchased subscription for the Amplitude Services.  Additional terms and conditions may appear on the Starter Program webpage (https://amplitude.com/get-started/), and any such additional terms and conditions are hereby incorporated into these Terms.  Amplitude may change the features and benefits associated with the Starter Program, or terminate Customer’s access to or use of the Starter Program, at any time in its sole discretion. 

(iii) Amplitude Scholarship Programs 

Amplitude may offer certain Customers access to a limited feature set in connection with Amplitude’s Startup Scholarship Plan or Tech for Black Founders Plan (together, the “Scholarship Programs”) for the period of time set forth in the documentation associated with the relevant Scholarship Program.  The terms related to the Scholarship Programs are available on the following program pages and are hereby incorporated into these Terms: (i) Startup Scholarship Plan, and (ii) Black Founders Plan.  Amplitude may change the features and benefits associated with the Scholarship Programs, or terminate Customer’s access to or use of the Scholarship Programs, at any time in its sole discretion.

3.1 – Administration of Customer’s Account

As part of the registration process, Customer will identify an administrative username and password (“Administrator Credentials“).  Customer may use the Administrative Credentials to invite individuals, with access under their own separate usernames and passwords, to use the Amplitude Services pursuant to these Terms, including employees, contractors, agents and consultants of Customer (“User(s)“).  Customer is responsible for maintaining the security of the Administrator Credentials and the usernames and passwords for all of its Users and shall use commercially reasonable efforts to prevent the unauthorized access to or use of the Amplitude Services.  Customer’s Users may use the Amplitude Services for Customer’s benefit only, in compliance with these Terms.  Customer shall be responsible for all acts or omissions taken under the Administrator Credentials and/or those taken by its Users and a breach of these Terms by a User shall be considered a breach by Customer.  Amplitude assumes no responsibility or liability for violations by Users.  If you become aware of any violation of these Terms in connection with use of the Amplitude Services by any person, please contact Amplitude at security@amplitude.com.  Amplitude may investigate and take any (or no) action that it believes is appropriate in response to a violation of these Terms, including but not limited to terminating access by Users. 

3.2 – License Restrictions

Customer will not (and will not allow any User or third party to) directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Amplitude Services (or any underlying software, documentation or data related to the Amplitude Services); (b) modify, translate, or create derivative works based on the Amplitude Services or any underlying software; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Amplitude Services or any underlying software; (d) use the Amplitude Services or any underlying software for the benefit of a third party, in violation of any applicable laws or regulations or outside the scope expressly permitted hereunder; (e) collect, process, store or transmit any Customer Data or otherwise use the Amplitude Services in violation of any applicable laws, regulations, privacy policies, agreements, or other obligations Customer may maintain or enter into with its end users; (f) collect, transmit or provide to the Amplitude Services hereunder financial information of any nature; medical information of any nature, including without limitation biometric or genetic data; social security numbers; driver’s license numbers; birth dates; passwords; personal bank account numbers; passport, government-issued ID or visa numbers; and credit card numbers; or any other sensitive personal data; (g) attempt to probe, scan or test the vulnerability of the Amplitude Services, breach the security or authentication measures of the Amplitude Services without proper authorization or willfully render any part of the Amplitude Services unusable; (h) use or access the Amplitude Services to develop a product or service that is competitive with the Amplitude Services or engage in competitive analysis or benchmarking; (i) incorporate the Amplitude Services into a product or service Customer provides to a third party or publicly disseminate information regarding the performance of the Amplitude Services; (j) remove any proprietary notices or labels; (k) store or transmit malicious code through the Amplitude Services; (l) use the Amplitude Services in any manner that infringes the intellectual property or other rights of Amplitude or any other individual or entity or (m) use the Amplitude Services in any way not specifically permitted under these Terms (all of the foregoing, collectively, the “License Restrictions“).

3.3 – Customer Responsibilities

Customer shall be responsible for: (a) its Users’ compliance with these Terms; (b) compliance with any and all applicable third-party terms of service, privacy policies and similar documents for platforms, networks and/or websites that Customer uses in connection with the Amplitude Services; (c) the legality, accuracy and quality of Customer Data submitted to the Amplitude Services, including ensuring that Customer’s use of the Amplitude Services to collect, process, store and transmit Customer Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with its end users such as all legally required consents and permissions; and (d) use commercially reasonable efforts to prevent the unauthorized access to or use of the Amplitude Services.  In addition, in the event Amplitude is legally or contractually required to change or modify the Amplitude Services in order to ensure the Amplitude Services comply with the terms of service or privacy policies of various platforms, networks and/or websites, then Customer shall be responsible for making all necessary changes to Customer’s applications and websites in order to continue using the Amplitude Services.  Customer also maintains all responsibility for determining whether the Amplitude Services or the information generated thereby is accurate or sufficient for Customer’s purposes.

3.4 – Third-Party Products

Customer may choose to use or procure Third-Party Products in connection with the Amplitude Services.  Any acquisition and use by Customer of such Third-Party Product is solely the responsibility of Customer and the applicable third-party provider and may be subject to additional terms of use from or agreement with such third party.  Customer is responsible for compliance with any and all applicable third-party terms of service, privacy policies and similar documents for any Third Party Products that Customer uses in connection with the Amplitude Services.  If Customer enables or uses Third-Party Products with the Amplitude Services, Customer acknowledges the interoperation of the Third-Party Products and Amplitude Services may require the exchange of Customer Data as required for the interoperation of the Third-Party Product and the Amplitude Services and Customer hereby grants Amplitude permission to allow the Third-Party Product and its provider to access or receive Customer Data in connection with such integration.  This may include transmitting, transferring, modifying or deleting Customer Data.  Amplitude shall not be responsible for any use, disclosure, modification, or deletion of such Customer Data or for any act or omission on the part of the third-party provider or its Third-Party Products.  Amplitude cannot guarantee the continued availability of integrations of Third-Party Products with the Amplitude Services, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if, for example and without limitation, the provider of a Third-Party Product ceases to make the Third-Party Product available for interoperation with the corresponding Amplitude Services in a manner acceptable to Amplitude.

4.1 – Definition of Confidential Information

“Confidential Information” means any information or data in any form or medium (whether oral, written, electronic, or otherwise) disclosed by either party that is marked or otherwise designated as confidential or proprietary at the time of disclosure or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding its disclosure.  However, Confidential Information will not include any information which (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

4.2 – Protection of Confidential Information

Each party agrees that it will use the Confidential Information of the other party solely in accordance with these Terms and it will not disclose, or permit to be disclosed, the same, directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of these Terms; and (b) as required by law (in which case the receiving party will, to the extent legally permitted, notify the disclosing party within a reasonable time prior to such access or disclosure so as to provide the disclosing party with the opportunity to contest such disclosure or otherwise seek appropriate protective measures, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  If the receiving party is compelled by law to access or disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, the disclosing party will reimburse the receiving party for the reasonable costs of compiling and providing secure access to such Confidential Information.  Neither party will disclose these Terms to any third party, except that either party may confidentially disclose such terms to actual or potential parties to a bona fide fundraising, acquisition, or similar transaction solely for the purposes of the proposed transaction, provided that any such party is subject to written non-disclosure obligations and limitations on use no less protective than those set forth herein.  Each party agrees to safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care.  In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in these Terms.

5.1 – Termination 

Amplitude may terminate or suspend Customer’s access to the Amplitude Services, without prior notice or liability, at any time and for any reason.  If Customer wishes to terminate its use of the Amplitude Services or its account, Customer may do so by contacting Amplitude.  Termination notices must be sent to Amplitude at the following email addresses: (a) for free trials or Starter Plans, support@amplitude.com; (b) for Scholarship Programs, scholarship@amplitude.com. 

5.2 – Survival

Upon expiration or termination of these Terms, all rights and obligations will immediately terminate except for any terms or conditions that by their nature should survive such termination will survive, including but not limited to, the License Restrictions and terms and conditions relating to confidentiality, disclaimers, indemnification, limitations of liability, termination, and arbitration and waiver of class action lawsuits. 

5.3 – Destruction of Customer Data

Subject to the TOS DPA, following termination Amplitude shall have no obligation to Customer with respect to the storage of Customer Data and may, in its sole discretion, permanently delete Customer Data.

6.1 – Indemnification

Customer agrees to release and to indemnify, defend and hold harmless Amplitude and its subsidiaries, affiliates and agencies, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including attorneys’ fees and court costs) claims or actions of any kind whatsoever (“Claim”) arising or resulting from Customer’s use of the Amplitude Services or violation of these Terms.  Amplitude reserves the right, at its own expense, to participate in or assume exclusive defense and control of any Claim otherwise subject to indemnification by Customer and, in such case, Customer agrees to cooperate with Amplitude in the defense of such matter.  Notwithstanding any other provision of these Terms, Customer shall not enter into settlement of any Claim that requires Amplitude to admit fault, accept liability or pay amounts that Customer must pay under this Section, without the prior written consent of Amplitude, which shall not be unreasonably withheld or delayed.

7.1 – Customer Representations and Warranties

Customer represents and warrants to Amplitude that (a) Customer will comply with all applicable laws in its use of the Amplitude Services; (b) Customer is a duly organized and a validly existing entity, in good standing under the laws of the jurisdiction in which it was formed, and that it has the right and capacity to enter into these Terms; (c) Customer has full power and authority to grant the rights covered by these Terms and that there are no outstanding obligations or agreements that conflict with these Terms; (d) Customer’s use of the Amplitude Services or agreement to these Terms does not and will not conflict with Customer’s obligations to any third parties; (e) Customer has obtained all legally required consents and permissions from its end users for the submission and processing of personal data through the Amplitude Services; and (f) these Terms constitute a valid and legally binding obligation on Customer that is enforceable in accordance with these Terms. 

7.2 – Disclaimers

THE AMPLITUDE SERVICES AND BETA SERVICES ARE PROVIDED “AS IS” AND AMPLITUDE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUALITY AND ACCURACY.  WITHOUT LIMITING ANY OF THE FOREGOING, AMPLITUDE DOES NOT WARRANT: (a) THAT THE AMPLITUDE SERVICES OR BETA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; (b) THAT THE AMPLITUDE SERVICES OR BETA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (c) AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE AMPLITUDE SERVICES OR BETA SERVICES; (d) THAT ANY INFORMATION PROVIDED THROUGH THE AMPLITUDE SERVICES OR BETA SERVICES IS ACCURATE OR COMPLETE; (e) THAT THE AMPLITUDE SERVICES OR BETA SERVICES WILL ALWAYS BE AVAILABLE; OR (f) THAT ANY RESULTS MAY BE OBTAINED FROM USE OF THE AMPLITUDE SERVICESOR BETA SERVICES.  THE AMPLITUDE SERVICES OR BETA SERVICES MAY CONTAIN BUGS, ERRORS, DEFECTS, OR HARMFUL COMPONENTS.

IN ADDITION, CUSTOMER ACKNOWLEDGES THAT AMPLITUDE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE AMPLITUDE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.  AMPLITUDE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.  AMPLITUDE IS NOT RESPONSIBLE OR LIABLE FOR ANY LOST OR INACCURATE DATA.  AMPLITUDE IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.

IN NO EVENT SHALL AMPLITUDE BE RESPONSIBLE OR LIABLE TO THE CUSTOMER FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, REPUTATIONAL HARM, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF SUCH DAMAGES IN ADVANCE.

AMPLITUDE’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE, SHALL NOT EXCEED $1,000.  THIS LIMIT OF LIABILITY IS EXCLUSIVE AS TO ALL REMEDIES AND THE LIABILITY CAP SHALL NOT BE COMBINED WITH ANY OTHER LIMITS OF LIABILITY SO AS TO INCREASE THE CAP VALUE IN ANY INSTANCE OR SERIES OF INSTANCES.  IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, AMPLITUDE’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

9.1 – Governing Law 

These Terms shall be governed by the laws of the State of California without regard to its conflict of laws provisions.  

9.2 – Initial Dispute Resolution

Customer agrees that before taking any formal legal action under these Terms, Customer shall provide written notice to Amplitude of the specific issue(s) in dispute, including reference to the relevant provision(s) of the Terms which are allegedly being breached.  Within thirty (30) days after such notice, representatives of each of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting, in good faith, to resolve the dispute. 

9.3 – Binding Arbitration

If the parties do not reach an agreed-upon solution within a period of 30 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision set forth in Section 9.2, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below.  Specifically, all claims arising out of or relating to these Terms (including their formation, performance, and breach), the parties’ relationship with each other and/or Customer’s use of the Amplitude Services shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Streamlined Arbitration and Procedures, excluding any rules or procedures governing or permitting class or representative actions.

Except as set forth in Section 9.6, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment).  The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.  The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.  The arbitrator’s award shall be in writing and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.  No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.

The Streamlined Arbitration Rules governing the arbitration may be accessed at www.jamsadr.com or by calling JAMS at (800) 352-5267.  The party initiating arbitration is responsible for paying the costs of filing, and the arbitrator’s fees will be shared equally between the parties.  Customer is responsible for its own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.  

Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and the arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements.  The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).

The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to Customer, and Customer waives any objection to such fee modification.  The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 9 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.

The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial.  They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

9.4 – Location

Arbitration shall take place in San Francisco, California, or another location mutually agreed to by the parties.

9.5 – Class Action Waiver

The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis.  CUSTOMER AND AMPLITUDE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  If there is a final judicial determination that applicable law precludes enforcement of this Section’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court.  The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.

9.6 – Exception: Litigation of Intellectual Property and Small Claims Court Claims

Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (where “intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).  Either party may also elect to have disputes or claims resolved in a small claims court for claims within the scope of that court’s jurisdiction.  Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in Customer’s state and county of residence.  Seeking such relief shall not waive a party’s right to arbitration under this Agreement.

9.7 – 30-Day Right to Opt Out

Customer has the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of its decision to opt-out to the following address: Amplitude, Inc., 201 Third  Street, Suite 200, San Francisco, CA 94103, Attn: Legal or legalnotices@amplitude.com.  The notice must be sent within 30 days of Customer’s assent to these Terms; otherwise, Customer shall be bound to arbitrate disputes in accordance with the terms of this Section.  If Customer opts-out of these arbitration provisions, Amplitude also will not be bound by them.

9.8 – Changes to this Section.

Amplitude will provide 30 days’ notice of any changes to this Section 9; changes will become effective on the 30th day.  If Customer continues to use the Amplitude Services after the 30th day, it agrees that any unfiled claims of which Amplitude does not have actual notice are subject to the revised clause.

For any dispute not subject to arbitration, Customer and Amplitude agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in San Francisco, California.  Customer further agrees to accept service of process by mail, and hereby waives any and all jurisdictional and venue defenses otherwise available.

10.1 – Entire Agreement; Conflicts

Both parties agree that these Terms, along with any terms that apply to the Beta Services, Starter Program, Scholarship Programs, and/or a free trial (as applicable) through which Customer is using the Amplitude Services, are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms.  

10.2 – Severability

In the event that any part or provision of these Terms is declared fully or partially invalid, unlawful or unenforceable by a court of competent jurisdiction, the remainder of the part or provision and the Terms will remain in full force and effect, if the essential terms and conditions of these Terms for each party remain valid, binding and enforceable.

10.3 – Assignment

Customer may not assign these Terms without Amplitude’s prior written consent.  These Terms are binding upon, and inure to the benefit of the parties and their respective successors and assigns.

10.4 – Independent Contractors

The parties to these Terms are independent contractors and these Terms do not create an agency, partnership, joint venture, employment, franchise, or agency relationship.  Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

10.5 – Notices

Any notice under these Terms must be given in writing.  Customer agrees that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing.  For example, Amplitude may provide notice to Customer through the Customer’s account or in-product notifications (as applicable).  Notices to Customer shall be sent to the email or other address as set forth in Customer’s account information.  Any legal notices to Amplitude must be sent to the following address: Amplitude, Inc., 201 Third Street, Suite 200, San Francisco, CA 94103, Attn: Legal or legalnotices@amplitude.com.  

10.6 – Marketing Rights

By using the Amplitude Services, Customer gives Amplitude the right to use Customer’s company name and logo in any Amplitude marketing materials, and agrees to participate in a case study that may be published on Amplitude’s website and/or in any marketing materials. 

10.7 – Export Restrictions

Customer must not access or use the Amplitude Services: (i) in or relating to any country or territory that is the subject or target of comprehensive trade or economic sanctions imposed by the U.S. government (“Sanctions”) (currently, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, and the Donetsk People’s Republic or Luhansk People’s Republic); (ii) for the benefit or on behalf of any person listed in any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State (including OFAC’s List of Specially Designated Nationals and Blocked Persons), or any person owned 50 percent or more by such person; or (iii) otherwise in violation of any U.S. Sanction, embargo, prohibition or restriction.  In addition, Customer must comply with all applicable laws and regulations governing the export, re-export and transfer of the Amplitude Services and Customer is responsible for obtaining any required export or import authorizations.

10.8 – Force Majeure

Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms 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, pandemic, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.