1.1 “Omnibound Platform” means the computer system comprised of both hardware, software and Omnibound Technology pursuant to which Omnibound provides the Omnibound Services.
1.2 “Omnibound Technology” means the software, technology, hardware, language models, products, processes, algorithms, user interfaces, know-how and other trade secrets, designs, inventions and other tangible or intangible technical material or information utilized by Omnibound in connection with the provision of the Omnibound Services, excluding in all cases the Customer Data and Customer trademarks.
1.3 “Customer Data” means all data that the Customer or its agents transmit or deliver to Omnibound in connection with the Customer’s access and use of the Omnibound services.
1.4 “Omnibound Services” means the Omnibound Platform customized or configured for use by the Customer as set forth in the Agreement.
1.5 “Professional Services” means those services performed by Omnibound pursuant to the Service Schedule between the parties, the nature of which are typically performed on a per-hour or per-day basis. For the avoidance of doubt, Professional Services shall not include any of the Omnibound Services.
1.6 “Scheduled Maintenance” means regularly scheduled system and software update and maintenance services performed by Omnibound on the Omnibound Technology.
1.7 “Service Schedule” means an addendum executed by both parties to this Agreement which specifies the services to be provided by Omnibound under this Agreement.
1.8 “Subscription Term” shall mean, as applicable, the term of the Omnibound Services purchased by Customer hereunder, as same is specified on a Service Schedule.
1.9 “Users” shall be defined as Customer's employees, consultants, contractors or agents who are authorized to use the Omnibound Services and who have been supplied Omnibound Platform user credentials by Customer (or by Omnibound at Customer's request).
1.10 “Effective Date” shall mean the date when the rights and obligations between both parties become operational.
1.11 “Customer Trademarks” shall mean Customer’s trademarks, trade names, trade dress, service marks, copyrights, patents, trade secrets, know-how or other pre-existing intellectual property, and any such rights it is permitted to exploit.
2.1 License. Omnibound hereby grants Customer and its Users a non-exclusive, non-transferable, non-assignable, non-sublicensable right to access and use the Omnibound Platform during the Subscription Term, in accordance with the terms of this Agreement solely as required to access and use the Omnibound Services only as specifically authorized in the applicable Service Schedule. Customer and its Users shall not, directly or indirectly, in whole or in part: (i) make copies of the Omnibound Technology; (ii) cause or permit any reverse engineering, de-compilation, modification, translation or disassembly of the Omnibound Technology or Omnibound Services; (iii) allow any third-party to use the Software or access the Omnibound Platform or Omnibound Services, or sell, rent, sublicense, distribute, disclose, publish, assign, commercially share (including timeshare), or otherwise transfer any rights in the Omnibound Platform or Omnibound Services, without Omnibound’s prior written consent; (iv) permit any third party application to access the collection of data indexed by the Omnibound Platform, or use the Omnibound Platform to create or populate any other collection (except with Omnibound’s prior written consent); (vi) do, or permit to be done, anything which shall adversely affect Omnibound’s right, title or interest in or to the Omnibound Platform, Omnibound technology and/or Omnibound Services; (vii) use the Omnibound Platform or Omnibound Services or Professional Services in a manner that is contrary to applicable law or in violation of any third party rights of privacy; (viii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Omnibound System or the Omnibound Technology; and (ix) create Internet “links” to the Omnibound Platform or Omnibound Services or “frame” or “mirror” any content contained in, or accessible from, the Omnibound Platform on any other server, wireless or Internet-based device.
2.2 Ownership. As between Omnibound and Customer, all title and ownership of all proprietary rights in and to the Customer Data and Customer Trademarks is and will always remain the property of Customer. Title and ownership of all proprietary rights, including any copyright, patent, trade secret, trademark or other intellectual property rights, in and to the Omnibound Platform to the extent it does not incorporate Customer’s Trademarks or Customer Data (including, without limitation, the Omnibound Technology and Omnibound Services) and any copies thereof, including all updates, enhancements and modifications thereto to the extent it does not incorporate Customer’s Trademarks or Customer Data, is and will at all times remain the property of Omnibound. Omnibound retains all right, title and interest in and to the Omnibound Services and Omnibound Platform that are not specifically granted to Customer hereunder and do not contain Customer’s Trademarks or Customer Data. Customer shall not remove or obliterate any copyright, trademark or proprietary rights notice of Omnibound or its licensors from the Omnibound Service and shall reproduce all such notices on all authorized copies thereof.
2.3 Upgrades on Omnibound Services. Omnibound may upgrade the Omnibound Technology accessed and used by Customer through the use of the Omnibound Services to new versions, or install patches, service packs or the like at any time without notice to Customer. Certain upgrades may introduce new functionality modules which will be made available to Customer on an optional basis for an additional fee; Customer will be given prior notice of any additional fees that may apply for such new modules, and an option to accept or reject the use of such new modules.
2.4 Maintenance. Omnibound performs regularly Scheduled Maintenance on the Omnibound Technology currently scheduled one Saturday each calendar quarter, or at other times and dates upon prior email notification. Omnibound may reasonably change the times during which it performs such Scheduled Maintenance and will exercise commercially reasonable efforts to perform no more than eight (8) hours of Scheduled Maintenance each calendar quarter. During such Scheduled Maintenance, the Omnibound Services may be unavailable or the functionality of the Omnibound Services may be limited. Omnibound reserves the right to perform emergency maintenance services on the Omnibound System at any time and without prior notice to Customer. All or a portion of the Omnibound Services may be unavailable during any period of such emergency maintenance.
3. Term and Termination
3.1 This Agreement contains terms which apply to all Service Schedules executed by the parties, and shall be in effect so long as any Service Schedule and subscription term is in effect. Either party may terminate this Agreement (including all related Service Schedules) if the other party: (a) fails to cure any material breach of this Agreement or a Service Schedule within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
3.2 Effect of Termination. Upon the Effective Date of the termination of this Agreement, (a) Omnibound shall immediately cease providing the Omnibound Services and remove all access for Customer to the Omnibound Platform; (b) any and all accrued payment obligations of customer under this Agreement for services provided through the date of termination will immediately become due; and (c) following termination or expiration of this Agreement, Sections 2.2 (“Ownership”); 3 (“Term and Termination”) 4 (“Warranties”); 6 (“Confidentiality”), 7 (“Limitation of Liability; Indemnification”), and 8 (“General”) shall survive. Customer shall pay Omnibound all unpaid fees within thirty (30) days of receipt of the final invoice.
4.1 Warranty and Remedies. Except to the extent otherwise set forth in this Agreement or a Service Schedule, Omnibound makes no representations or warranties with respect to its work product, express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Omnibound is not responsible for any delays, delivery failures, or other damage resulting from such problems unless such delay, delivery failure or other damage due to the gross negligence of Omnibound. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
4.2 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OMNIBOUND AND ITS LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY PROVIDED PURSUANT TO SECTION 4.1 ABOVE, THE SERVICES ARE PROVIDED “AS IS”. OMNIBOUND DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
5.1 Fees, Payment and Delivery All payments under this agreement shall be in US dollars and invoiced via email or US mail. Customer agrees to pay Omnibound the fees set forth in the applicable invoice within thirty (30) days from the date of invoice. All fees are exclusive of shipping, taxes, duties and other similar fees, all of which shall be the responsibility of and shall be paid by Customer. A service charge of one and one-half (1½) percent per month will be applied to all overdue invoices. Customer agrees to pay for all reasonable costs (including reasonable attorneys’ fees) incurred in collecting past due amounts under this Agreement.
5.2 Expenses. Customer will also reimburse Omnibound for reasonable shipping, taxes and travel expenses incurred in connection with the Services if approved in advance by the customer.
5.3 Suspension. Customer understands and agrees that if Customer's account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, Omnibound reserves the right to suspend all Services until such amounts are paid in full and Omnibound shall have no liability to Customer in connection with or as a result of the same. Customer agrees and acknowledges that Omnibound has no obligation to retain any Customer Data if Customer’s account is more than 30 days past due, and in such event, on prior written notice, Customer Data may be irretrievably deleted if the Customer’s account is unpaid after 30 days.
Except as expressly and unambiguously permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party during the term of this Agreement that are confidential or proprietary, or which may be reasonably regarded as the confidential information of such party (“Confidential Information”). Confidential Information will also include the Software, Documentation, the terms of this Agreement, and any new product information or the results of any benchmark or similar tests on the Omnibound Platform or Omnibound Services conducted by Customer or divulged by Customer to Omnibound. Each party shall treat the other party’s Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of its own Confidential Information, but in no event less than reasonable care. Confidential Information will not include any materials or information that the recipient can prove (i) is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) is known by the receiving party at the time of disclosure as evidenced by its records; (iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; (v) is the subject of a written permission to disclose provided by the disclosing party; or (vi) is disclosed in response to a valid order of a court or other governmental body provided that the receiving party shall provide the disclosing party with written notice of such required disclosure and a commercially reasonable opportunity to oppose such required disclosure.
7.1 LIMITATION ON LIABILITY. IN NO EVENT WILL CUSTOMER’S OR ITS AFFILIATES OR OMNIBOUND OR ITS SUPPLIERS’ AND/OR LICENSORS’ LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNTS PAID TO OMNIBOUND BY CUSTOMER FOR THE APPLICABLE SOFTWARE AND/OR SERVICES HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THE LIMIT. IN NO EVENT SHALL OMNIBOUND HAVE ANY LIABILITY TO CUSTOMER OR CUSTOMER HAVE ANY LIABILITY TO OMNIBOUND FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT OMNIBOUND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL NOT APPLY TO DAMAGES RESULTING FROM (I) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, OR (II) MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
7.2 Indemnification. Each party shall defend, indemnify and hold harmless the other party (“Indemnified Party”) from and against any third party claims, judgments, demands for damages and costs (including without limitation reasonable attorneys’ fees), which result from or arise out of any breach of warranty set forth in Section 4.1 (“Warranties”) or and/or in a Service Schedule. The obligations of this Section 7.2 are contingent on the Indemnified Party’s (a) giving prompt written notice of any such claim to the indemnifying party; (b) providing reasonable cooperation in the defense and all related settlement negotiations to the indemnifying party; and (c) agreeing that to the indemnifying party shall have sole control over the litigation or settlement of such claim. Customer acknowledges that Omnibound shall have no indemnification obligations in the event that: (i) Omnibound Technology is modified or combined with other software or other systems if the third party action would have been avoided had such modification or combination not occurred; or (ii) Customer uses the Omnibound Technology and/or Services in a manner not expressly contemplated by Omnibound documentation provided to Customer.
8.1 This Agreement, its Exhibits, Service Schedule(s) and attachments thereto represent the entire agreement between Customer and Omnibound and supersedes all other representations, proposals, or agreements, whether written or oral. Each provision of this Agreement is severable from all other provisions, and if one or more of the provisions of this Agreement shall be declared invalid the remaining provisions of this Agreement shall remain in full force and effect. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement that is signed on behalf of both parties. Neither party may assign its rights and/or obligations under this Agreement except to a successor to the entire, or substantially entire, business without the prior written consent of the other, which shall not be unreasonably withheld or delayed. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. Neither party shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any other contract, agreement or undertaking with any third party.
8.2 Notwithstanding anything to the contrary in this Agreement, Omnibound shall not be prohibited at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services.
8.3 This Agreement is governed by the laws of the State of Texas. Any controversy or claim arising from or relating to this Agreement shall be settled by final arbitration by the American Arbitration Association (“AAA”) under AAA’s Commercial Arbitration Rules, by a tribunal of three (3) arbitrators, one appointed by the claimant, the second by the respondent, and the two shall choose a third neutral arbitrator. The arbitration will be held in the venue of the respondent. Judgment on the award may be entered and enforced by any court having jurisdiction over the parties and subject matter of the arbitration.
8.4 Neither party will be liable for failure to perform obligations under this Agreement if the failure results from an act of God, fire, explosion, accident, industrial dispute, or any other event beyond such party’s reasonable control.
8.5 Any notice required to be given by either party under this Agreement shall be in writing and sent by certified mail or confirmed fax. Such notice shall be deemed to have been received five (5) days from date of mailing or confirmed fax.
8.6 In the event of conflict between the terms of this Agreement, any Exhibit, and/or any Service Schedule, the documents shall control in the following order: Service Schedule(s), attachments to Service Schedule(s), Agreement, and Exhibit(s) to Agreement.
8.7 If any term or provision is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall affect no other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.