Amplifi PRO - Terms and Conditions

1. General

1.1. These terms and conditions apply to the use by an individual, institutional or corporate subscriber (‘Subscriber’) of the data, software tools, information and editorial content (‘Licensed Materials’) contained in Amplifi PRO

1.2. Access to Amplifi PRO is open only to authorised clients of The Smart Cube and is conditional on payment by the Subscriber of all amounts due under their client contract (“the Relevant Contract”).

2. License Terms and Use Restrictions

2.1 Subscribers will be given access to Amplifi PRO on a Per User License, a Site or Multisite License, an Enterprise License or a Function License (each a ‘License’) as approved by The Smart Cube and more specifically described in these terms and conditions. All Licenses are personal to the Subscriber and may not be assigned or transferred. Except where specifically provided otherwise, sections 2.2, 3, 4, 5, 6, 7 and 8 of these terms and conditions apply to all Licenses.

Per User License; this license permits a single individual to access Amplifi PRO and to use the Licensed Materials in the course of the Subscriber’s normal business. The Subscriber; (i) shall obtain the prior written consent of The Smart Cube to any additional individual(s) being granted access to Amplifi PRO; and (ii) shall promptly notify The Smart Cube of any other changes to the individuals.

Site or Multisite License; this license permits all the Subscriber’s employees and/or other workers to access Amplifi PRO and to use the Licensed Materials in the course of the Subscriber’s normal business.

Enterprise License; this license permits all the employees and/or other workers of the Subscriber Group to access Amplifi PRO and to use the Licensed Materials in the course of the Subscriber Group’s normal business. The addition of Affiliates to the Subscriber Group is subject to the prior written consent of The Smart Cube. References in these terms and conditions to Subscriber include the Subscriber Group provided that the Subscriber will be liable for acts and omissions of Affiliates as though such acts and/or omissions were the Subscriber’s own.

2.2 In these terms and conditions; “Affiliate” in respect of a corporate entity means any other corporate entity which directly or indirectly, controls, is controlled by or is under common control with such entity and the term “control” (including the terms “controlled by” and “under common control with”) in relation to an entity means the ownership of 51%or more of the voting securities in that entity; “Authorised User(s)” means; (i) Per User Licence - the named individual(s) authorised by The Smart Cube; (ii) Site License - all the Subscriber’s employees and/or other workers normally located at the physical site(s) as authorised by The Smart Cube Order Form; (iii) Enterprise Licence - all employees and other workers in the Subscriber Group;

“Derived Materials” means materials created by or on behalf of the Subscriber incorporating the Licensed Materials in combination with other information and/or data;

“Subscriber Group” means a corporate subscriber and its Affiliates as at the date authorisation by the Smart Cube, which may be updated by Subscriber upon written notice to The Smart Cube;

“Unauthorised” in relation to a person means any person other than a Subscriber or any other person within or outside a Subscriber Group who is neither a Subscriber nor an Authorised User but excludes administrative and support staff who provide technical and other support services to a Subscriber or Authorised Users but do not otherwise use the Licensed Materials.

2.3 Passwords are for the personal use of the individual to whom they are issued and may not be made available to others for the purpose of using Amplifi PRO. If The Smart Cube suspects that a password is being used by an Unauthorised person it may cancel the password.

3. Intellectual Property Rights

3.1. All intellectual property rights, including but not limited to copyright and database rights, in Amplifi PRO and the Licensed Materials (in both machine readable and printed form) are and remain the property of The Smart Cube or its third party licensors.

3.2 Subscribers and Authorised Users acquire no proprietary rights in Amplifi PRO or the Licensed Materials and except as expressly permitted by these terms and conditions may not use Amplifi PRO or the Licensed Materials in any way that infringes the intellectual property rights in them. In particular Subscribers and Authorised Users may not; (i) make Amplifi PRO or any part of the Licensed Materials available to Unauthorised persons; (ii) re-sell Amplifi PRO or any part of the Licensed Materials to others; or (iii) obscure or remove any copyright notices that appear on Licensed Materials extracted from Amplifi PRO.

3.3 Subscribers and Authorised Users may within the terms of the applicable License create Derived Data and use such Derived Data in the course of the Subscriber’s business provided that; (i) the Subscriber acknowledges The Smart Cube as a data source in relation to all Derived Data; and (ii) the Subscriber does not use or authorise the use of Derived Data in products or services that are competitive with Amplifi PRO.

4. Verification and Audit

4.1. The Subscriber shall, within 7 business days of a written request from The Smart Cube provide; (i) a list of all individuals who have access to the Licensed Materials; or (ii) a certificate signed by an authorized representative of the Subscriber confirming that the Subscriber has complied in all material respects with these terms and specifically that the Licensed Materials have not been distributed or transmitted, in any form, to any Unauthorised person.

4.2. The Smart Cube or any other person authorised by The Smart Cube shall have the right, after giving written notice of ten business days, to enter the Subscriber’s premises during normal business hours solely to inspect the Subscriber’s records relating to the use and distribution of the Licensed Materials. The Smart Cube shall treat as confidential all information relating to the Subscriber’s business that it acquires in the course of such an inspection. The Smart Cube shall not exercise this right of inspection more than once in each calendar year.

4.3. If an audit performed by The Smart Cube under section 4.2 reveals that the Subscriber is in breach of these terms and conditions the Subscriber will reimburse The Smart Cube (i) the reasonable cost incurred by The Smart Cube in performing the audit; (ii) all fees payable in relation to any Unauthorised person revealed by the audit as having access to Amplifi PRO or the Licensed Materials; and (iii) interest on the above amounts from the date they become payable until the date of payment at the highest rate permitted by applicable law.

4.4. The rights of The Smart Cube under this section shall continue for the term of the subscription and for 12 months thereafter.

5. Subscriber’s Equipment

It is the Subscriber’s responsibility to ensure that it has the equipment necessary to access Amplifi PRO and receive and use the Licensed Materials.

6. Availability of Amplifi PRO

The Smart Cube shall use all reasonable endeavours in accordance with good industry practice to ensure that Amplifi PRO is available to Subscribers and Authorised Users excluding downtime for regular or emergency maintenance which shall be kept to a minimum. Time is not of the essence in respect to the delivery of any particular Amplifi PRO service or the Licensed Materials and The Smart Cube’s sole obligation is to effect such delivery as soon as is practically possible.

Subject to the above:

1. The service level target for platform availability is 99.95% or better.

2. A Smart Cube helpdesk service will be available to Subscriber and will be reached through e-mail setup for the purpose

3. In case of any incident on the website, Subscriber would be notified via e-mail. Whenever possible, the home page of the platform will also be updated with appropriate message to notify users of any outage.

7. Limitations on Liability

7.1 Amplifi PRO and the Licensed Materials are provided by The Smart Cube on an ‘as is’ basis and The Smart Cube excludes to the extent permitted by law all implied warranties relating to fitness for a particular purpose.

7.2 The Smart Cube accepts no liability in connection with use of Amplifi PRO or the Licensed Materials and in particular shall not be liable in contract, tort (including negligence) or otherwise for the following losses arising out of, or in connection with, this Agreement: (a) indirect or consequential loss or damage; or (b) (whether they arise directly or indirectly) loss of business, revenue, opportunity, profits, goodwill or data. SUBSCRIBER HEREBY WAIVES ALL CLAIMS AGAINST THE SMART CUBE, ITS OFFICERS, EMPLOYEES, AND AGENTS, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO LOST BUSINESS, REVENUE, OPPORTUNITIES, PROFITS, GOODWILL, AND DATA AND DAMAGES ARISING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER ALLEGED TO ARISE FROM BREACH OF CONTRACT, EXPRESS OR IMPLIED WARRANTY, OR IN TORT INCLUDING WITHOUT LIMITATION, NEGLIGENCE, EXCEPT AS OTHERWISE SPECIFICALLY PERMITTED UNDER THIS AGREEMENT.

7.3 The Smart Cube shall be under no liability for any failure, delay or omission by it arising from any cause beyond its control, including, but not limited to acts of God, acts or regulations of any governmental or supra-national authority, war or national emergency, denial of service attacks, fire, civil disobedience, strikes, lock-outs and industrial disputes. If the force majeure event continues for a period of thirty days or more, Subscriber may terminate this Agreement upon written notice to The Smart Cube.

8. Suspension and Termination

8.1 The Smart Cube may without notice and without compensation suspend access to Amplifi PRO by Subscriber and/or one or more Authorised Users if (i) the Subscriber is in default of its payment obligations under the Relevant Contract and has failed to cure such default within ten business days of receipt of The Smart Cube’s written notice describing such failure or (ii) The Smart Cube has reasonable grounds to suspect the Subscriber or such Authorised User (s) to be in breach of these terms and conditions, though The Smart Cube shall use reasonable efforts to notify Subscriber or Authorized User reasonably in advance of suspension.

8.2. The Smart Cube may withdraw access to Amplifi PRO at any time.

8.3. On expiry of the Relevant Contract with The Smart Cube, the Subscriber shall cease all use of the Licensed Materials immediately.

8.4. Expiry or termination of a subscription shall be without prejudice to the accrued rights and obligations of the parties and, in particular, sections 3, 4 and 7 shall survive termination for whatever reason.

9. Confidentiality

Each of the parties acknowledges that, whether in the performance of this Agreement or otherwise, it will receive or become aware of information relating to the other party, its clients, business or affairs, which information is confidential to the other party ("Confidential Information"). Each party will keep all Confidential Information of the other party confidential and take reasonable steps to keep it secure and protected against theft, damage, loss or unauthorised access and will not at any time without the prior written consent of the other party use or disclose any of the other party’s Confidential Information other than for the sole purpose of the performance of its obligations and the exercise of its rights under this Agreement. Notwithstanding the above, The Smart Cube shall be entitled to disclose the Confidential Information of the Subscriber to its affiliates, independent contractors and professional advisers on a strictly need to know basis for the sole purpose of the performance of its obligations under this Agreement provided always that such persons are aware of the obligations of confidentiality under this Agreement and The Smart Cube shall use reasonable endeavors to procure compliance with such obligations of confidentiality. The obligations of confidentiality shall not apply to any Confidential Information to the extent to which it: (a) is in the public domain; (b) is lawfully received by the recipient from a third party on an unrestricted basis; (c) is already known to the recipient before receipt from the discloser; or (d) is required to be disclosed by law, regulation or pursuant to an order of a competent authority, regulatory body, recognised stock exchange or to a professional adviser, provided the recipient provides the discloser with reasonable written notice prior to any such disclosure.

10. Content

10.1. Materials and features may be added to and removed from Amplifi PRO and the Licensed Materials without notice.

10.2. The Materials and information included in Amplifi PRO and the Licensed Materials are provided for reference purposes only. They are not intended either as a substitute for professional advice or judgement or to provide legal or other advice with respect to particular circumstances.

10.3. Every effort is made to keep Amplifi PRO and the Licensed Materials up to date but users are advised to obtain independent verification or advice before relying on any piece of information in circumstances where loss or damage may result.

11. Compliance with Applicable Laws

Each Party agrees to abide at all times with all the applicable laws and regulations (including, but not limited to, privacy laws, data protection legislations etc.) that may be in place from time to time.

12. Waiver

The failure of either Party at any time to enforce any provisions of this Agreement or to exercise any right herein provided, shall not be considered as a waiver of such right or any other provision or in any way effect the validity of this Agreement.

13. Severability

The invalidity of any portion of this Agreement by a court with legal jurisdiction shall not affect the remaining portions of this Agreement or any part thereof, and this Agreement shall be construed, as if the invalid portion or portions had not been inserted therein.

14. Notices

Any notice required or permitted to be given hereunder shall be sent by registered post or equivalent, facsimile, courier or other electronic transmission and shall be addressed to Parties on the address first-mentioned above.

15. Law

The Agreement shall be construed and have effect in accordance with the laws of England and Wales.

16. Entirety of Agreement

This Agreement represents the entire agreement and understanding of the Parties and all prior or concurrent agreements, whether written or oral, in regard to the subject matter hereof are and have been merged herein and superseded hereby.