Terms and Conditions

This Master Service Agreement (the “MSA”) is effective upon execution of an Order Form or other ordering document referencing this MSA (each an “Order Form” and together with this MSA, the “Agreement”), by and between Omniloy, Inc., a Delaware corporation (“Omniloy”) and the party named as Customer in the Order Form. This Agreement governs Customer’s Subscription to access and use of the software-as-a-service solution offered by Omniloy and described on the applicable Order Form.

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1. The Service.

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1. Subscriptions. Company and Customer may enter into one or more Order Forms referencing this MSA, pursuant to which Customer may purchase a subscription to access and use the Service, subject to this Agreement (a “Subscription”). An Order Form may additionally include implementation and other professional services to be performed by Omniloy (the “Professional Services”).

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2. Authorized Users. An “Authorized User” is a person who the Customer, or a person with admin access on a Customer’s account, has authorized to use the Service, either via the interface of the Service, the Customer’s product, or via a request to Omniloy. Authorized Users may be customers, employees, contractors, agents or other service providers of Customer. Customer is responsible for all actions by Authorized Users on Customer’s account. Each Authorized User is subject to and must accept Omniloy’s User Terms of Service.

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3. Access to the Service. During the term of a Subscription, Omniloy shall provide Customer and Customer’s Authorized Users with non-exclusive access to the Service. Customer and the Authorized Users may use the Service for Customer’s own business purposes and may charge their authorized users for access to the Service within the Customer’s application.

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2. Billing and Payments.

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1. Pricing Structure. Fees for access to the Service are based on per user basis, with an annual or monthly subscription fee per Authorized User as described on the applicable Order Form (the “Subscription Fees”). An Order Form may additionally explicitly designate that a Subscription Fee shall be an organization-wide subscription with an annual subscription fee for an unlimited number of Users. Fees for Professional Services are charged as described in the applicable Order Form (the “Professional Services Fees” and together with the Subscription Fees, the “Fees”)

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2. Billing and Invoices. Unless otherwise stated on an Order Form, Subscription Fees are invoiced annually in advance upon execution of the Order Form and upon each renewal thereof, as applicable. Professional Services Fees are invoiced as set forth in the Order Form. All invoices are due 30 days after the date of invoice.

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3. Late Charges. Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.

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4. Taxes. Customer is solely responsible for payment of any taxes resulting from the use of the Service. If any such taxes are required to be withheld, Customer shall pay an amount to Omniloy such that the net amount payable to Omniloy after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.

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5. Billing Disputes. Customer agrees that it will notify Omniloy within 30 days of receipt of an invoice from Omniloy if it intends to dispute the amounts owed under such invoice, and that after 30 days all undisputed invoices will be deemed to have been accepted. Disputes can be sent to legal@omniloy.com

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3. Intellectual Property Rights & Restrictions.

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1. Customer Information. As part of the Service, Customer or its Authorized Users may upload to the Service certain documents, images, files, notes, tags or other electronic records relating to the operations of Customer (the “Customer Information”). As between Customer and Omniloy, Customer retains all ownership of the Customer Information,
   

and Omniloy agrees that it obtains no intellectual property rights in the Customer Information except the limited license set forth herein. Customer hereby grants Omniloy a limited, non-exclusive, royalty-free license to use the Customer Information to provide the Service to Customer and Customer’s Authorized Users and to support, manage and improve the Service, subject to the confidentiality obligations set forth in this Agreement. Additionally, Customer hereby grants Omniloy a limited, non-exclusive, royalty-free license to use Customer Information in an aggregated and anonymized manner, provided that such use does not allow any third party to identify Customer or any Authorized User.

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2. Omniloy Intellectual Property. Omniloy shall retain all intellectual property rights in the Service, including any and all derivatives, changes and improvements thereto, and Customer agrees that it obtains no intellectual property rights or licenses by this MSA except those expressly granted herein. Customer agrees that it shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service; (ii) not represent that it possesses any proprietary interest in the Service; (iii) not directly or indirectly, take any action to contest Omniloy's intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of Omniloy.

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3. Omniloy Platform Data. In the course of providing the Service, Omniloy may collect statistical data and performance information, analytics, meta-data or similar information, generated through instrumentation and logging systems, regarding the operation of the Service, including Customer’s use of the Service (the “Platform Data”). Nothing in this Agreement shall restrict Omniloy’s right to collect Platform Data or to use it for any internal business purpose, provided however, that Omniloy will not disclose Platform Data to any third party in a manner that allows such third party to identify Customer or any Authorized User, other than Omniloy’s employees, agents or service providers who are subject to obligations of confidentiality with respect to such Platform Data.

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4. Feedback. Customer may, from time to time, provide Omniloy with ideas, suggestions, feedback, recommendations or improvements pertaining to the Service (collectively, “Feedback”). Customer hereby grants Omniloy a non-exclusive, perpetual, irrevocable, royalty-free license to use all Feedback for any purpose. Feedback is provided to Omniloy on an “as-is” basis without warranties of any kind.

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5. Marketing Rights. Customer consents to both the use of its name and logo in Omniloy website, platform and to participate in a marketable case-study that may be shared in website and social media. Any Marketing activities beyond these two items will require Customer’s explicit consent.

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4. Privacy and Security.

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1. Security. Without prejudice to Customer’s obligations under Clause 4.4 (Customer Responsibilities), Omniloy will implement reasonable and appropriate administrative, physical, and technical safeguards, inline with industry best-practices, to secure the Customer Information against accidental or unlawful loss, access, or disclosure. Any and all data processed must be encrypted in-transit and at rest.

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2. Account Security. Login credentials cannot be shared or used by more than one individual Authorized User. Customer will notify Omniloy immediately if Customer believes that an unauthorized third party has accessed Customer’s account on the Service, or that an Authorized User’s account credentials or Customer Information have been compromised.

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3. Data Privacy. Customer acknowledges that it has reviewed Omniloy’s Privacy Policy (the “Privacy Policy”).

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4. Customer Responsibilities. Customer acknowledges and agrees that Customer and its Authorized Users control the content of any Customer Information inputted, transmitted, uploaded, transferred, submitted, replicated or in any other way accessed or used through the use of and for the purposes of providing the Service. Accordingly, Customer is solely responsible for accuracy, content and legality of all Customer Information uploaded by (or on behalf of) Customer or its Authorized Users to the Service. In addition, Customer acknowledges and agrees that it shall be responsible for procuring and maintaining any necessary consents and permissions and providing and making any necessary notifications required to ensure: (i) Customer is lawfully (without being in breach of applicable laws or contract) able to disclose, provide or make available to the Customer Information to Omniloy in connection with this Agreement and the Service, including (but not limited to) any consents required to enable the lawful transfer of Customer Information to
   

Omniloy is located in the United States; and (ii) Omniloy is lawfully (without being in breach of applicable law) able to use, store, handle and process the Customer Information in accordance with and for the purposes contemplated by this Agreement.

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5. EU Data Processing Addendum. To the extent Omniloy processes any Customer Information that includes “personal data” protected by Data Protection Laws (defined in the DPA), Omniloy agrees to process such personal data in compliance with Omniloy’s Data Processing Addendum (the “DPA”), which is hereby incorporated by reference.

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6. California Consumer Privacy Act. Customer acknowledges and agrees that Omniloy’s California Data Privacy Addendum (the “CDPA”) is hereby incorporated into this Agreement by reference.

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5. Confidentiality.

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1. Confidential Information. “Confidential Information” shall mean all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential (i) with respect to Customer, the Customer Information, but not the Platform Data, and (ii) with respect to Omniloy, the pricing terms offered to Customer by Omniloy.

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2. Nondisclosure. Each party (each a “Receiving Party”) agrees that (i) it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this MSA and only to the extent necessary for such purposes and (ii) it shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, service providers or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this MSA, and shall not otherwise disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The Receiving Party will exercise at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this MSA for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.

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3. Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this MSA by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this MSA.

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6. Representations and Warranties.

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1. Customer Representations and Warranties. Customer Represents and warrants to Omniloy that: (i) Customer has all necessary right and authority to upload the Customer Information to the Service without infringement upon any third party’s proprietary or privacy rights, including without limitation intellectual property rights; (ii) the Customer Information does not contain any viruses, worms, Trojan horses or other harmful or destructive code or content; and (iii) Customer will use the Service in compliance with all applicable laws, rules and regulations, and in accordance with this MSA.

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2. Omniloy Representations and Warranties. Omniloy represents and warrants to Customer that Omniloy will provide the Service to Customer in accordance with all applicable laws, rules and regulations.

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3. Mutual Representations and Warranties. Each party represents and warrants that it has the necessary corporate authority to enter into this Agreement, and this Agreement is a valid and binding obligation, enforceable against it, in accordance with its terms.
   
4. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, OMNILOYPROVIDES THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, OMNILOY DOES NOT WARRANT THAT THE SERVICE WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICE.

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7. Indemnification.

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1. Customer Indemnities. Customer shall defend, indemnify and hold harmless Omniloy and its officers, directors, consultants, employees, successors and permitted assigns, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) resulting from any third party claim, demand, action, subpoena, request or attestation (collectively, a “Claim”) arising from (i) the use or display of any Customer Information in accordance with this MSA or (ii) Customer's breach of its obligations or inaccuracy of its warranties hereunder.

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2. Omniloy Indemnities. Omniloy shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to an allegation that the Service infringes any intellectual property right of a third party.

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3. Indemnification Procedure. The indemnified party shall provide the indemnifying party with: (i) prompt written notice of such Claim; (ii) sole control over the defense and settlement of such claim; and (iii) information as may be reasonably requested by the indemnifying party. The indemnified party will have the right to approve the counsel selected by the indemnifying party for defense of any such claim, which approval will not be unreasonably withheld. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party’s written consent, not to be unreasonably withheld or delayed.

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8. Limitation of Liability.

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1. Exclusion of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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2. Maximum Aggregate Liability. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY DURING THE TWELVE MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES.

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3. Acknowledgement. THE LIABILITIES LIMITED BY THIS SECTION 8 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 8, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE BY SUCH LAW.

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9. Term; Termination.

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1. Term. This MSA shall be effective for so long as there is an Order Form in effect between Customer and Omniloy, or until otherwise terminated as provided herein.

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2. Termination for Cause. Either party may terminate this MSA by giving written notice to the other party if: (i) the other party breaches a material provision of this MSA and fails to cure the breach within 30 days after being given written notice thereof; (ii) the other party breaches a material provision of the SLA (see Service Level Agreements addendum) and continues to fails to abide by the SLA within 3 days after being given written notice thereof; (iii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or
   

receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.

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3. Effect of Termination. Upon termination or expiration of this MSA for any reason, Customer’s right to access and use the Service shall immediately terminate and Customer will immediately cease use of the Service.

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4. Survival. Sections 3 (Intellectual Property Rights & Restrictions), 4 (Privacy and Security), 5 (Confidentiality), 7 (Indemnification), Section 6 (Representations and Warranties), 8 (Limitation of Liability), 11 (Miscellaneous) shall survive any expiration or termination of this MSA.

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10. Changes to this MSA. This MSA is subject to occasional revision. Omniloy will notify Customer of any changes to this MSA by posting the updated version of this MSA on the Service and updating the “Last Updated” date below. Omniloy will also notify Customer of material changes by sending an email to the email address Customer has provided Omniloy. For existing Customers, any changes to this MSA will be effective thirty calendar days following notification of such change, and for new Customers entering into this MSA after the new “Last Updated” date, these changes will be effective immediately. Continued use of the Service following such changes will indicate Customer’s acknowledgement of such changes and agreement to be bound by the updated version of this MSA.

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11. Miscellaneous.

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1. Governing law. This MSA is governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and any dispute arising from this MSA shall be brought exclusively before the state and federal courts in San Francisco, California, and each party irrevocably submits to the jurisdiction of such courts.

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2. Assignment. Neither party may transfer or assign its rights or obligations under this MSA to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this MSA will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

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3. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email.

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4. Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This MSA will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.

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5. Severability. If any provision of this MSA is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.

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6. Temporary Suspension. Omniloy may temporarily suspend Customer’s access to the Service if Omniloy reasonably determines that: (a) Customer’s use of the Service disrupts or creates a security risk to the Service or Omniloy systems; (b) Customer is using the Service in violation of any applicable law or regulation or this MSA; or (c) Customer fails to pay fees owed to Omniloy in accordance with this Agreement. In the event of any suspension pursuant to this section, Omniloy will use commercially reasonable efforts to provide written notice thereof to Customer, and to restore access to the Service as promptly as reasonably practicable.

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7. Force Majeure. Except for payment obligations under this MSA, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, labor strikes, pandemic or other public health crises.

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Last updated: May 24th, 2024

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