Omni Software Subscription Agreement
This Software Subscription Agreement (this “Agreement”), effective as of August 15, 2022 (the “Effective Date”), is by and between Omni Analytics, Inc. (“Omni”) and (“Customer”).
Parties hereby agree to the following terms and conditions:
1. Subscription Services; Access and Use
- Subscription Services. Subject to the terms and conditions of this Agreement, Omni hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 11(f)) right to Use the Subscription Services during the Term, solely for Customer's internal business and subject to the Order Form.
Use Restriction. Customer will not at any time and will not permit any person to indirectly:
- use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement;
- modify or create derivative works of the Subscription Services or Documentation, in whole or in part;
- reverse engineer, disassemble, de-compile, decode or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part;
- frame, mirror, sell, resell, rent or lease use of the Subscription Services;
- use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law;
- interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; or
- use the Subscription Services, Documentation or any other Omni Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services.
- Authorized Users. Customer will only permit Authorized Users to access or use the Subscription Services. Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their use of the Subscription Services. Customer will require all Authorized Users to use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Omni if Customer knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Subscription Services may only be accessed and used by the specific Authorized User for whom such account is create
- Third-Party Services. Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Subscription Services. Omni does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or updates to the Third-Party Service. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Service
- Reservation of Rights. Subject to the limited rights expressly granted in this document, Omni reserves all rights, title and interest in and to the Omni IP. No rights are granted to Customer other than as expressly set forth herein.
- Feedback. Customer or Authorized Users may provide certain suggestions and feedback concerning the Subscription Services (“Feedback”) to Omni. If Customer grants such Feedback, Customer hereby grants Omni a perpetual, irrevocable, royalty-free and fully-paid up license to use such Feedback without restrictions
2. Fees and Payment
- Fees. Customer will pay Omni the non-refundable fees as set forth in the relevant Order Form without offset or deduction. Omni will issue invoices to Customer pursuant to the terms set forth in the Order Form and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice.
- Payments. Payments due to Omni under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Omni or such other payment method mutually agreed by the parties. All payments are non-refundable and neither party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Omni may suspend Subscription Services until all payments are made in full. Customer will reimburse Omni for all reasonable costs and expenses incurred (including reasonable attorneys' fees) in collecting any late payments or interest.
- Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Omni hereunder, other than any taxes imposed on Omni's income.
3. Confidential Information
- Use and Disclosure of Confidential Information. The Recipient will only use the Disclosing Party's Confidential Information to exercise its rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the Disclosing Party's Confidential Information. Notwithstanding any other provision in the Agreement, the Recipient may disclose the Disclosing Party's Confidential Information (a) to its employees, affiliates, agents, contractors, or professional advisors who have a need to know and who are bound by confidentiality obligations at least as protective as those in this Section 3 (Confidential Information); (b) with the Disclosing Party's written consent; or (c) as strictly necessary to comply with applicable law, provided the Recipient promptly notifies the Disclosing Party prior to such disclosure unless the Recipient is legally prohibited from doing so. The Recipient will comply with the Disclosing Party's reasonable requests to oppose disclosure of its Confidential Information.
- Permitted Use. Without limiting the foregoing, nothing in this Agreement will limit or restrict Omni's ability to use or disclose any general know-how, experience, concepts and/or ideas that Omni or its personnel acquire or obtain in connection with the performance of Omni's obligations hereunder. Further, Omni may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Product Data.
- Trade Secret. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
4. Customer Data
- Omni acknowledges that, as set forth in Section 4(b), Customer owns and retains all right, title and interest in and to all Customer Data.
- Customer hereby grants Omni a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Data solely for the purpose of hosting, operating, improving and providing the Subscription Services, any related professional services and Omni's other related products, services and technologies during the Term.
5. Representations and Warranties
Each party hereby represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party. Omni further warrants that (1) the Subscription Services will operating substantially in accordance with the Documentation; (2) Omni will conduct commercially reasonable and industry standard virus and security scans; and (3) Omni's provision of Subscription Services and related professional services will be in a workmanlike, professional manner
- Omni Indemnification. Subject to Section 6(b), Omni will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer's Use of the Subscription Services infringes or misappropriates such third party's Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Omni (including reasonable attorneys' fees) resulting from such Claim. Omni will defend Customer against any claim, action, suit or proceeding brought by a third party (“Claims”): (i) alleging that the Subscription Services infringe, misappropriate or otherwise violate a third party's Intellectual Property Rights; (ii) arising out of or relating to Omni's breach of any representation, warranty or obligation in this Agreement (including any Exhibit); (iii) arising out of or relating to Omni's violation of law, gross negligence, willful misconduct or fraud; or (iv) arising out of a data breach or any other unauthorized use of or access to personal data or any violation by Omni of its obligations with respect to personal data, and will indemnify and hold harmless Customer against any liabilities, damages, fines, expenses, costs and other losses incurred by Customer, awarded against Customer or agreed in settlement (including attorneys' fees) resulting from any such Claim (“Losses”).
- Exclusions. Omni's obligations under Section 6(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer's breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Data; (iii) Customer's failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Omni; (iv) modifications to the Subscription Services by anyone other than Omni; or (v) combinations of the Subscription Services with software, data or materials not provided by Omni.
- IP Remedies. If Omni reasonably believes the Subscription Services (or any component thereof) could infringe any third party's Intellectual Property Rights, Omni may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue use. If Omni determines that neither alternative is commercially practicable, Omni may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Omni will refund to Customer a pro-rata portion of the fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 6(c) shall constitute Customer's sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.
- Customer Indemnification. Subject to Section 6(e), Customer will defend Omni against Claims arising from (i) any Customer Data, including, without limitation, (A) any Claim that the Customer Data infringe, misappropriate or otherwise violate any third party's Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Data violates any applicable law, rule or regulation; (ii) any of Customer's products or services; and (iii) use of the Subscription Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 1(b), and in each case, will indemnify and hold harmless Omni against any damages and costs awarded against Omni or agreed in settlement by Customer (including reasonable attorneys' fees) resulting from such Claim.
- Indemnification Procedures. The party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party's prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party's business, products or services). The Indemnified Party may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUBSCRIPTION SERVICES, RELATED PROFESSIONAL SERVICES AND OTHER OMNI IP ARE PROVIDED ON AN “AS IS” BASIS, AND OMNI MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE OMNI IP, THE SUBSCRIPTION SERVICES, RELATED PROFESSIONAL SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OMNI HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, OMNI HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES OR RELATED PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
8. Limitations of Liability
- Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER'S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE OMNI IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES AND RELATED PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
- Total Liability. IN NO EVENT WILL EITHER PARTY'S TOTAL LIABILITY TO EACH OTHER IN CONNECTION WITH THIS AGREEMENT, THE OMNI IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES OR RELATED PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO OMNI IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT OMNI WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE
- Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN OMNI AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
9. Term and Termination
- Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for an additional period of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides the other with at least thirty (30) days' written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
- Termination. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
- Survival. This Section 9(c) and Sections 1(b), 1(c), 1(f), 2, 3, 4, 6, 7, 8, 10, 11(d) and 12 survive any termination or expiration of this Agreement.
- Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will return or destroy, at Omni's sole option, all Omni Confidential Information in its possession or control, including permanent removal of such Omni Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer's possession or under Customer's control, and at Omni's request, certify in writing to Omni that the Omni Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer's obligation to pay all fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
Customer hereby agrees that Omni may use Customer's name, trademarks, and logos on Omni's website and in its marketing materials, unless Customer revokes out by sending an email to
- Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties.
- Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth below or to such other address as may be specified by the relevant party to the other party in accordance with this Section 11(b). Such notices shall deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when received by telegraphic or other electronic means (with no bounce-back message received).
- If to Omni:
4184 20th St
San Francisco, CA 94114
Attention: Colin Zima, CEO
- If to Customer:
[ADDRESS LINE 1]
[ADDRESS LINE 2]
[ADDRESS LINE 3]
Attention: [NAME / TITLE]
Email: [EMAIL ADDRESS]
- If to Omni:
- Waiver. Either party's failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.
- Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
- Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
- Assignment. Neither party may assign or transfer this Agreement, by operation of law or otherwise, without the other party's prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning party's business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns.
- Equitable Relief. Each party agrees that a breach or threatened breach by such party of any of its obligations under Section 4 or, in the case of Customer, Section 2(b), would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Force Majeure. Neither party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
- Subcontracting. Omni may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that the Omni remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Omni shall use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but shall not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that the Losses are caused directly from the gross negligence or willful misconduct of Omni.
- Export Regulation. Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Subscription Services or software, or any Customer Data, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
- U.S. Government End Users. The Subscription Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing in this Agreement shall be construed to establish any partnership, joint venture or agency relationship between the parties. Neither party will have the power or authority to bind the other or incur any obligations on the other's behalf without the other party's prior written consent.
- No Third-Party Beneficiaries . No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties and their respective successors and assigns.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
- “Authorized User” means an employee or contractor whom Customer has authorized to use the Subscription Services, as identified in the Order Form.
- “Confidential Information” means information that one party (“Disclosing Party”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Confidential Information does not include information that is independently developed by the Recipient, is shared with the Recipient by a third party without confidentiality obligations, or is or becomes public through no fault of the Recipient. For clarity, the Subscription Services and the Documentation will be deemed Confidential Information of Omni.
- “Customer Data” means all information, data, content and other materials that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to Omni in connection with Customer's use of the Subscription Services, excluding, Product Data.
- “Documentation” means the operator and user manuals for the Subscription Services.
- “Intellectual Property Rights” means patent rights, inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
- “Omni IP” means the Subscription Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services or any related professional services, Documentation, and Product Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
- “Product Data” means any data that is derived or aggregated in de-identified form from (i) any Customer Data; or (ii) Customer's and/or its Authorized Users' use of the Subscription Services, including, any usage data or trends with respect to the Subscription Services.
- “Order Form” refers to Exhibit A as executed by both parties, which this Agreements incorporates by reference.
- “Subscription Services” means Omni's business intelligence platform, as more particularly described or identified in the applicable Order Form.