Terms of Service
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF SERVICE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE OR USE OF THE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEBSITE OR THE PRODUCTS.
- In order to use the Product, you must agree to these Terms. However, in addition to clicking the “I Accept” box, you also agree to these Terms by actually using the Product. You acknowledge and agree that Omniquo will treat your use of the Product as acceptance of these Terms from the time you first use the Product.
- Omniquo reserves the right to change any of the terms and conditions contained in these Terms, the Product, any functionality of the Product and/or any policies or guidelines governing the Product, at any time and in its sole discretion. While we will endeavor to provide direct notice to you of any changes, you are responsible for periodically checking the Site to determine if any changes have been made and we are not liable for your failure to do so or our failure to provide such direct notice to you. Your continued use of the Product following any revision to these Terms will constitute your acceptance of the changes or modifications to these Terms. If you do not agree to any changes to these Terms, do not continue to use the Product.
- Provision of Product. Omniquo will provide Customer with access to its Product in accordance with the terms and conditions contained in these Terms and the specific offering set forth on the Order Form executed by the parties. In order to use the Product, Customer is responsible at Customer’s own expense for (a) providing Omniquo with access to the API of Customer’s system of record (CRM Vendor) in order to allow Omniquo to access Customer’s data; (b) for providing email accounts for each of Customer’s Users (as defined below) specified on the Order Form, including usernames and credentials for each; and (c) for providing its own access to the Internet, either directly or through devices that access Web-based content, and for paying any fees associated with such access.
- License Grant. Subject to the terms and conditions contained in these Terms, and in consideration for the payment of fees set forth on the Order Form, Omniquo hereby grants to Customer a non-exclusive, non-transferable license for Customer’s Users (as defined below) to access and use the Product with respect to the number of Users for which Customer has paid fees, solely for Customer’s internal business purposes and solely for the specific Product offering and during the term indicated on the Order Form. A “User” shall mean an employee, independent contractor or other representative of Customer. This license is restricted to use by Customer and its Users and does not include the right to use Omniquo Technology (as hereinafter defined) on behalf of any third party or the right to permit any non-User to access or use the Product. Customer also agrees to be bound by any further restrictions set forth on the Order Form. All rights not expressly granted to Customer are reserved by Omniquo and its licensors. There are no implied rights.
- Omniquo Technology. In connection with the delivery of the Product, Omniquo shall operate and support, including through third parties suppliers, the hosted environment used by Omniquo to deliver the Product, including, without limitation, the Omniquo Technology (as hereinafter defined), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other information developed or provided by Omniquo or its suppliers under these Terms. For purposes of these Terms, “Omniquo Technology” means all of Omniquo’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, documentation and other tangible or intangible technical material or information) made available to Customer by Omniquo in providing the Product.
- Product Availability. Subject to the terms and conditions contained in these Terms, Omniquo shall use commercially reasonable efforts to provide access to the Product for twenty-four (24) hours a day, seven (7) days a week throughout the term of the agreement with Customer (the “Agreement“). Customer acknowledges and agrees that from time to time the Product may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Omniquo may undertake from time to time (“Scheduled Maintenance”); or (iii) causes beyond the control of Omniquo or which are not reasonably foreseeable by Omniquo, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). Omniquo shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Customer in the event of any Scheduled Maintenance. Omniquo shall have no obligation during performance of such operations to mirror Customer Data on any other server or to transfer Customer Data to any other server. Omniquo shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Product in connection with Downtime, whether scheduled or not.
- Restrictions. Unauthorized use (including any resale or commercial exploitation) of the Product or any Omniquo Technology in any way is expressly prohibited. Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of any Omniquo Technology, or access the Product in order to build a competitive product or service or copy any ideas, features or functions of the Product. Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign the Product or any Omniquo Technology to any third-party or otherwise make the functionality of the Product or any Omniquo Technology available to third parties. Customer shall take all measures necessary to ensure compliance by all of its Users with all terms and conditions contained in these Terms, and Customer shall be responsible for all acts and omissions of such Users in connection with this Agreement. Customer shall keep all passwords safe and secure, and shall be responsible for all use of the Product using passwords issued to Customer and its Users. In addition to Omniquo’s other remedies hereunder, Omniquo reserves the right upon ten (10) days prior written notice to Customer to terminate any User’s right to access the Product if Omniquo can reasonably demonstrate to Customer that such User has materially violated the restrictions contained in these Terms.
- Omniquo Ownership. Customer acknowledges and agrees that (i) as between Omniquo and Customer, all right, title and interest in and to the Omniquo Technology and the Product and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain Omniquo’s or its licensors’, and this Agreement in no way conveys any right or interest in the Omniquo Technology or the Product other than a limited license to use the Product in accordance herewith, and (ii) the Omniquo Technology and the Product are works protected by copyright, trade secret, and other proprietary rights and laws. The Omniquo name, the Omniquo logo, and the product names associated with the Product are trademarks of Omniquo or third parties, and no right or license is granted to use them. Customer shall not remove any Omniquo trademark or logo from the Product or Site.
- Payment of Fees; Taxes. Customer shall pay to Omniquo the fees specified and in accordance with the schedule set forth on the applicable Order Form. If Customer pays fees by credit card, Omniquo will charge the credit card the applicable fee in advance, at the frequency set forth in the Order Form. Customer remains liable for any fees which are rejected by the card issuer or charged back to Omniquo. If fees are invoiced, payment is due thirty days from date of invoice (unless otherwise specified on the Order Form). Customer agrees to pay a late charge of one and half percent (1 1/2%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid when due. Amounts set forth on the Order Form exclude taxes. Customer will be solely responsible for, and will promptly pay, all taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement, the Products, or Customer’s and its Users access to the Product, except for taxes based on Omniquo’s net income or payroll. Customer agrees to pay reasonable attorneys’ fees and court costs incurred by Omniquo to collect any unpaid amounts owed by Customer. Fees may be changed by Omniquo from time to time, provided that fees shall not be changed during the term of an order. Upon at least thirty (30) days prior written notice, Omniquo may review Customer’s use of the Product to ensure that Customer is in compliance with these Terms and the applicable Order Form. Customer will provide Omniquo with access to relevant Customer records and facilities.
- Customer Data. All data and content which the Customer makes available to Omniquo in connection with this Agreement, including data provided via use of the CRM’s API and email messages sent by Customer using the Product, and including any data collected, processed and analyzed from Customer and its Users by the Product and any data generated by the Product in connection thereto. (the “Customer Data”) is stored in a private and secure fashion, and will not be used by Omniquo except as necessary to provide the Product. As between Omniquo and Customer, Customer retains ownership of all Customer Data, including all right, title and interest therein. Customer hereby grants to Omniquo a limited, non-exclusive, non-transferable right to use, display, transmit and distribute the Customer Data solely in connection with providing the Product to Customer. In addition, Omniquo may use Customer Data and information regarding Customer’s use of the Product to create aggregated data (e.g. with other customers) and statistics, and Omniquo may during and after the term hereof, use and disclose such data and statistics in its discretion so long as any disclosed data does not identify Customer or any individual (collectively “Benchmarking”). Except as provided in these Terms, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. Omniquo shall operate the Product in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections. Customer acknowledges that Customer Data obtained by Omniquo using the CRM Vendor’s API will be transmitted outside CRM Vendor’s system, and to such extent the CRM Vendor is not responsible for the privacy, security or integrity of such data. If Omniquo processes any personal data on Customer’s behalf when performing its obligations under this Agreement: (a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the country where the Customer and Users are located in order to carry out Omniquo’s obligations; (b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Omniquo so that Omniquo may lawfully use, process and transfer the personal data on the Customer’s behalf pursuant to these Terms; and (c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.
- Customer Responsibilities. Customer is solely responsible for all Customer Data. Omniquo does not guarantee the accuracy, integrity, legality or quality of such Customer Data and shall not be responsible for any loss or damage to Customer Data. Customer shall not: (a) upload or otherwise make available to Omniquo any Customer Data that is unlawful, threatening, defamatory, obscene, discriminatory or that violates the rights of any third parties; (b) upload or otherwise make available to Omniquo any Customer Data that Customer does not have a right to transmit under any law or under contractual relationships; (c) use, upload or otherwise transmit any Customer Data or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (d) upload or otherwise make available to Omniquo any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Product or Servers or networks connected to the Product or Site; (f) upload or otherwise make available to Omniquo any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder; or (g) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the Federal Trade Commission, any rules of any securities exchange, and laws regarding the export of technical data. Omniquo reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
- Warranties; Disclaimer. (a) Customer represents and warrants that: (i) Customer Data and its use by Omniquo as permitted by these Terms will not infringe on the copyrights, trademarks, service marks, patents, or other intellectual property or personal rights held by any third party; (ii) if applicable, Customer has all corporate (or other organization type) power and authority to enter into this Agreement and has duly and validly authorized this Agreement; and (iii) Customer shall comply with all laws, regulations and rules applicable to Customer and its use of the Product. (b) Customer shall not, and shall not permit others to, (i) remove any proprietary notices or labels on the Products (including without limitation, any copyright, trademark notices), or (ii) use the Product other than as expressly permitted hereunder. (c) Omniquo represents and warrants that (i) it will provide the Product in a competent and workmanlike manner; and (ii) it has all corporate power and authority to enter into this Agreement and has duly and validly authorized this Agreement. Omniquo does not warrant that it will be able to correct all reported defects or that use of the Product will be uninterrupted or error free or will meet Customer’s requirements. Omniquo is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, or related to any services provided by third parties. Omniquo makes no warranty regarding features or products provided by CRM Vendor or any other third parties. Omniquo retains the right to modify its products and services at its discretion provided that doing so does not have a material adverse impact on the Product hereunder. Customer’s sole remedy for Omniquo’s breach of the warranty in clause i above shall be that Omniquo shall remedy the applicable error, or if Omniquo is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Product for the period during which the breach of warranty occurred. (d) Customer acknowledges and agrees that except for the express warranties provided above in this Section, all warranties, whether express, implied or statutory, and all obligations and representations as to performance, including all warranties which might arise from course of dealing or custom or trade and including all implied warranties of merchantability or fitness for a particular purpose, are hereby expressly excluded and disclaimed by Omniquo. No CRM Vendor makes any representations or warranties with respect to Omniquo’s performance under this agreement. The Customer assumes sole responsibility for information and results obtained from the use of the Product, and for conclusions drawn from such use. Omniquo shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Customer in connection with use of the Product, or any actions taken in connection thereto.
- Limitation of Liability. (A) EXCEPT FOR INDEMNIFICATION OBLIGATIONS HEREUNDER (SECTION 16), CUSTOMER’S BREACH OF SECTION 8 (RESTRICTIONS), OR CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER:
(I) TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EACH PARTY’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO OMNIQUO UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND
(II) IN NO EVENT SHALL EITHER PARTY (OR FOR OMNIQUO, ITS LICENSORS OR OTHER PROVIDERS) BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (WHICH MAY INCLUDE THE LOSS OF ANTICIPATED PROFITS OR REVENUES) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
(B) THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 15 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT OMNIQUO HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY LIMITED REMEDY OR THIS AGREEMENT SHALL FAIL ITS ESSENTIAL PURPOSE.
- Indemnification. (a) Omniquo shall defend, indemnify and hold harmless Customer, its affiliates, and their respective directors, stockholders, officers, employees and agents (collectively, “Related Persons”) from and against any liabilities, losses, damages, costs or expenses, including reasonable attorneys’ fees, experts’ fees and court costs (collectively, “Losses”) to the extent resulting from any third party claim, demand, suit or proceeding (each, a “Claim”) based on any allegation that the Product, as provided by Omniquo hereunder, infringes or misappropriates any copyright or trade secret of such third party. If a claim of infringement or misappropriation occurs, or if Omniquo determines that a claim is likely to occur, Omniquo shall have the right, in its sole discretion, to either: (i) procure for Customer the right or license to continue to use the Product free of the infringement claim; or (ii) replace or modify the Product to make it non-infringing. If these remedies are not reasonably available to Omniquo, Omniquo may, at its option, terminate this Agreement and return to Customer any pre-paid unused fees for the Product. Despite the provisions of this Section, Omniquo has no obligation with respect to any claim of infringement or misappropriation that is based upon or arises out of (x) Customer’s use of the Product other than in accordance with the applicable documentation or Omniquo’s written directions or policies; or (y) any third party software, other technology, data or content, or any Customer Data. FOR ANY INFRINGEMENT BY THE PRODUCT, THIS SECTION STATES THE ENTIRE LIABILITY OF OMNIQUO AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES.
(b) Customer shall defend, indemnify and hold harmless Omniquo and its Related Persons from and against any Losses to the extent resulting from any Claim based on (i) any allegation that the Customer Data infringes, violates or misappropriates such third party’s intellectual property or proprietary rights, (ii) Customer’s breach of Section 8 (Restrictions) or Section 12 (Customer Responsibilities) or Section 13 (CAN-SPAM Compliance), or (iii) Customer use of the Product. (c) As conditions to the indemnification obligations in paragraphs a and b above, the indemnified party shall (i) promptly notify the indemnifying party in writing of any Claim for which indemnity is claimed, provided that failure to so notify will not relieve the indemnifying party’s indemnification obligation except to the extent it is prejudiced thereby; (ii) allow the indemnifying party sole control, at its expense, of the defense and settlement of the Claim, provided that (A) the indemnified party may participate in such defense and settlement via counsel of its own choosing, at its sole expense, and (B) any settlement shall be subject to the prior written consent of the indemnified party, not unreasonably withheld; and (iii) reasonably cooperate with the indemnifying party with respect to such defense and settlement.
- Assignment. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Neither party shall, without the prior written consent of the other party, assign or transfer this Agreement, in whole or in part, provided that either party may assign this Agreement in its entirety, without consent, to any successor to its business, including in connection with any merger, consolidation, and any sale of all or substantially all of its assets or any other transaction in which more than fifty percent (50%) of the party’s voting securities are transferred, provided that such successor agrees in writing to be bound by the terms contained in these Terms.
- Entire Agreement. This Agreement and these Terms, including the Order Form, contain the complete understanding and agreement of the parties and supersede all prior or contemporaneous agreements or understandings, oral or written (including confidentiality agreements), relating to the subject matter herein. Notwithstanding any course of dealings between the parties at any time, no purchase order, invoice or similar document shall be construed to modify any of the terms contained in these Terms, unless the document is (a) signed by both parties and (b) expressly refers to all provisions of these Terms that the parties intend to modify by such document. This Agreement may be executed electronically or in multiple counterparts, all of which, taken together, shall constitute one and the same instrument. Any conflict between the terms set forth on an Order Form and these Terms shall be controlled by the terms and conditions set forth in these Terms.
- Termination and Suspension. This Agreement takes effect on the date specified in the Order Form and shall continue for the period of performance set forth in the Order Form. Unless otherwise set forth on the Order Form, upon the initial contract end date this Agreement will automatically renew for successive terms of 12 months, unless either party gives written notice of non-renewal at least 30 days before the renewal date, and in such case this Agreement will terminate on the renewal date. Notwithstanding the foregoing, each party will have the right to terminate this Agreement if the other party materially breaches this Agreement or these Terms and fails to cure such breach within thirty (30) days after written notice thereof. In addition to the foregoing, Omniquo also reserves the right, in its sole and absolute discretion, to suspend providing the Product and Customer agrees that Omniquo may shut off and suspend Customer’s access to the Product at any time, without having to terminate this Agreement, if Customer is more than thirty (30) days late with respect to any payments due hereunder, subject to being provided written notice of such payment delinquency by Omniquo. Upon such suspension, Customer shall still be liable for all payments that have accrued prior to the date of suspension and that will accrue throughout the remainder of the term. Omniquo will not be obligated to restore access to the Product until Customer has paid all fees owed to Omniquo.
- After Termination. Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder shall terminate and Omniquo shall no longer provide access to the Product to Customer and its Users; and (ii) Customer shall cease and cause its Users to cease using the Product. Upon termination of this Agreement, in addition to any remedies Omniquo may have in the event of uncured breach by Customer, Customer shall pay Omniquo for all fees that had accrued prior to the termination date and continue to pay Omniquo for all Product fees that will accrue through the end of the then current term. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Sections 8-16, 18, 20, 21, 24 and all accrued payment obligations, will survive termination or expiration of this Agreement.
- Confidentiality. Each party to this Agreement agrees that during the term of this Agreement, information that is confidential may be disclosed to the other party, including, but not limited to Omniquo Technology, Product, Customer Data, software, technical processes and formulas, source codes, product designs, algorithms, sales, cost and other unpublished financial information, product and business plans, advertising revenues, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving party can demonstrate (a) is generally known to the public at the time of its disclosure, or thereafter becomes generally known to the public through a source other than the receiving party, (b) was known to the receiving party as of the time of its disclosure, (c) is independently developed by the receiving party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in these Terms, each party shall not use the other party’s Confidential Information except in connection with this Agreement nor make any disclosure of the other party’s Confidential Information to anyone other than its employees, contractors or Users who have a need to know in connection with this Agreement. Each party shall notify its employees, contractors and Users of their confidentiality obligations with respect to the other party’s Confidential Information and shall require its employees, contractors and Users to comply with these obligations. The confidentiality obligations of each party and its employees and Users shall survive three years beyond the expiration or termination of this Agreement. Omniquo shall have the right to publically use Customer’s name and logo on customer lists published on Omniquo’s website and in marketing materials. Omniquo may announce the customer relationship in a press release provided that Omniquo obtains Customer’s prior approval of the release and the wording of the release, not unreasonably withheld.
- Notices. Any notice required or permitted hereunder shall be in writing and may be delivered to the contact person listed on the Order Form as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by certified or registered mail, return receipt requested, upon verification of receipt; or (iv) by electronic delivery when receipt is confirmed orally. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section.
- Force Majeure. If either party is prevented from performing any of its obligations under this Agreement (except for Customer’s obligation to pay amounts due to Omniquo) due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, acts of vandals, acts of hackers, or Denial of Service attacks (DoS) (each, a “Force Majeure Event”), the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence; provided that, if a party suffering a Force Majeure Event is unable to resume performance within thirty (30) days, the other party may terminate this Agreement by written notice thereof.