The OMO Services are offered to Client subject to its acceptance, without modification, of these Terms of Service and any future modifications thereof, and procedures that may be published from time to time or made available to Client on or through the OMO Services. When the OMO Services are used by a Client, these Terms form a legally binding contract between Client and OMO. If you are entering into these Terms on behalf of an entity, such as your employer, or the company you work for, you represent and warrant that you have the legal authority to represent and bind such Client, in which case the terms “you,” “your”, “customer” or a related capitalized term herein will refer to such Client.
IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING FOR THE OMO SERVICES, PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE AND/OR AGENT OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE).
The Terms is a contract that governs Clients’ use of the OMO Services and consists of the following:
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE OMO SERVICES
YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE OMO SERVICES.
“Account” means the primary means for accessing and using the OMO Services, subject to payment of a Fee designated in the agreed Plan.
“Administrator” means a User(s) of an Account which the Client has granted a special authorisation to manage the Client Account.
“Affiliates” means any legal entity that controls or owns more than 50% of such entity’s outstanding shares or securities, is controlled by, or under common control with a party.
“Beta Service” means any functionality of OMO Services that is in development or has not been commercially released as a final product and which OMO has made available to Client for testing and evaluation.
“Client” means a natural or legal person or entity who has accepted these Terms with OMO by using the OMO Services.
“Client Data” means data and documents of any kind (images, spreadsheets, text files, etc.) and any other digital data and information, which is subject to the Platform, or otherwise inserted into the Platform by the Client and for which OMO is a “processor” (as defined in the Privacy Notice). Client Data shall not contain Sensitive Information.
“Content” means any data and information available through OMO Services or contained within the structure of the OMO Services, including but not limited to, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials, and any comments.
“Credentials” means all usernames, passwords, and other access credentials created by or assigned to Client and each of its designated Users for use of the OMO Services.
“Feature” means a function or set of functions providing a particular capability within the OMO Services as determined by the OMO and as further governed by any applicable Supplemental Terms.
“Fee” means regular payment for using the OMO Services via an activated Account.
“Feedback” means any comment, bug report, feedback, suggestion, or modification for the OMO Services which Client or a User provides to OMO.
“Master Terms” means these core legal and commercial terms that apply to Client’s use of OMO Services.
“OMO” means, as the context requires, OMOLimited or any other of its Affiliates.
“OMO Materials” means the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the Content, code, data, and all other elements of the OMO Services.
“OMO Services” means the Web Site, Content, OMO Materials, Platform and all other content, services and/or products, and Features, available on or through the Platform.
“Plan” means various criteria related to the use and functionality and cost of a particular OMO Service and on which the Fee is based.
“Plan Term” means the period of the Client’s use of the OMO Services commencing on the date of payment of the corresponding Fee for the associated Plan and concluding on the date of expiration of the Plan.
“Platform” means the OMOgrowth management application, including any associated Features.
“Privacy Notice” means the notice, as set forth at https://www.OMO.com/en/privacy, which describes how OMO collects, receives, uses, stores, shares, transfers, and processes Client Data in connection with Client’s use of the OMO Services. It also describes Client’s choices regarding use, as well as Client’s rights of access to and correction of its Client Data.
“Renewal Date” means the date the Client’s Plan will automatically renew on an annual or monthly basis depending on the Client’s Plan.
“Sensitive Information” means credit or debit card numbers; financial account numbers or wire instructions; government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection.
“Sub-processor” means any third party, as set forth here, which OMO uses in the provision of OMO Services.
“Supplemental Terms” means the terms, as set forth here, applicable to Client’s use of a particular Feature or any third party services and which form a part of the Terms.
“Terms” means these Terms of Service and consists of the Master Terms, any applicable Supplemental Terms, the DPA and the Privacy Notice.
“User” means an entity or individual granted with the authorized rights and privileges to use the Account on behalf of a Client.
“Web Site” means the compilation of all web documents (including images, php and html files) made available via www.omogmp.com, its subdomains or domains with identical names under other top domains, and owned by OMO.
OMO reserves the right, at its sole discretion, to change, modify, add, or remove any portions of the Terms from time to time. Notification of such modifications may be posted on or through the Platform or the OMO Services. Client’s continued use of the OMO Services constitutes its acceptance of these Terms and any modifications as they arise.
Subject to these Terms and any applicable Supplemental Terms, and the payment of the applicable Fee, OMO grants Client and its Users a non-exclusive, non-transferable, non-sublicensable license to use the OMO Services to:
OMO reserves the right to modify the OMO Services or any part or element thereof from time to time without prior notice, including, without limitation:
As applicable, Client may be notified of such modifications when logging in to the Account.
If the Client does not accept a modification, Client shall notify OMO before the effective date of the modification, and Client’s Account will terminate on the effective date of the modification. However, Client’s continued use of the OMO Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. OMO shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the OMO Services, or any part or element thereof.
Client is responsible for maintaining the confidentiality of all Credentials and is solely responsible for all activities that occur with such Credentials. These Credentials must not be shared or used by multiple persons, but may be reassigned to a new User replacing a former User who has terminated employment (or otherwise changed job function) and who no longer uses OMO Services. OMO reserves the right to terminate any User’s Credentials that OMO reasonably determines may have been used by an unauthorized third party or in an unauthorized manner, as solely determined by OMO, and will provide immediate notice of such termination to Client.
Client must promptly notify OMO:
Client acknowledges that it retains administrative control over to whom it grants access to Customer Data hosted in the OMO Services. Client may specify a User to be the billing owner and, depending on the Plan, one or more Users to be an Administrator to manage its account, and OMO is entitled to rely on communications from an Administrator when servicing Client’s Account. Client’s Administrator(s) may have the ability to access, monitor, use, and/or export Customer Data.
OMO shall provide reasonable technical support to Client and its Users via the following options as outlined below, as soon as reasonably possible.
OMO Community & Knowledge Base - available to all Users
Chat - available to all Users, via their OMO Account
Phone - Users on certain Plans can request a call back from support via their OMO Account
If you are having trouble logging you can contact us here or if you don’t have aOMO Account, you can reach out to us at [email protected].
Client understands and agrees that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account and/or User. In the event that the Client loses access to an Account or otherwise requests information about an Account, we reserve the right to request from the Client any verification we deem necessary before restoring access to or providing information about such Account.
OMO may, from time to time, make Features available through the OMO Services, and which may be subject to Supplemental Terms. The Client's use of any such Feature is subject to any applicable Supplemental Terms.
OMO may offer Clients certain Features for the purpose of testing and evaluation called Beta Services. OMO reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services, with or without notice to the Client. The Client agrees that the OMO will not be liable to the Client or to any third party for any harm related to, arising out of the Client's use of the Beta Services, or caused by the modification, suspension or discontinuance of any of the Beta Services, for any reason. For AI Beta Services the OMO AI Beta Services Terms available here also apply.
Client and its Users may use the OMO Services, and any part or element thereof, only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
The Client or any User may not, without OMO’s prior express written consent:
The Client, any User, Reseller, or agent (“Third Party”) hereby represents, warrants, covenants, and agrees that, with respect to the OMO Services:
OMOendeavors to comply with all laws, including the US Digital Millennium Copyright Act, and reserves the right to remove any Client Data from the Platform upon receipt of a compliant takedown notice, including any judicial orders or notices.
OMO will (a) make the OMO Services, Content and Client Data available to Client pursuant to these Terms, (b) provide support as outlined in Section 3.6 for the OMO Services to Client at no additional charge, (c) use commercially reasonable efforts to make the OMO Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which OMO shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond OMO’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, pandemic, strike or other labor problem, Internet service provider failure or delay or denial of service attack. OMO may use Sub-processors to perform the OMO Services. OMO will make commercially reasonable efforts to ensure that data transfers to Sub-processors meet requirements applicable to Clients’ processing of Client Data and will provide information on such data transfers in these Terms for Client’s consideration. For additional information regarding such transfers with Sub-processors, please see OMO’s Privacy Notice and current list of Sub-processors.
OMO will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures for preventing unauthorized access, use, modification or disclosure of Client Data. Additionally, OMO shall only access, use, modify or otherwise disclose of Client Data: (a) to provide the OMO Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.6 (Compelled Disclosure) below, (c) as Client or User expressly permits in writing.
The provisions of this Section 6 are applicable only if Client accesses the OMO Services directly from OMO. If Client purchases access to the OMO Services through a Reseller, any payment terms shall be set forth in Client’s agreement with such Reseller.
The use of the OMO Services, which is not via a Free Trial, is subject to a Fee. Upon sign-up of an Account, Client must select a Plan. Different rates apply to different Plans. The applicable Fee is charged in advance on a monthly, or annual basis. OMO reserves the right to modify the Fees for any Plan, in its reasonable discretion, at any time after the commencement of the Plan Term, upon at least one month’s prior notice to Client, provided that any such modification will not take effect until the start of any Plan immediately following the Plan Term in which OMO provided Client with notice of the modification.
Client authorizes OMO to automatically charge Client the applicable Fees on or after the Renewal Date unless the Plan has been terminated or canceled in accordance with these Terms. If a Client wishes to reduce the number of Seats, it must do so prior to the Renewal Date. Clients may cancel their Plan anytime as outlined below, however must do so prior to the Renewal Date in order to avoid billing of the next Plan Term’s Fees. If Client chooses to cancel its Plan during the Plan Term, Client may use the Service until the end of Client’s then-current Plan Term, but will not be issued a refund for the most recently (or any previously) charged Fees.
All Fees are non-refundable. For purposes of clarity, there are no refunds or credits for periods where the Client did not use an activated Account, used it only partially, deactivated the Account or terminated these Terms during an ongoing payment interval, or where an Account is terminated or suspended by OMO in accordance with Section 13.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Client is solely responsible for the payment of such taxes, levies or duties.
In the event the Client does not pay all Fees due within 29 days of invoice date, OMO will suspend all access to the Client Account. Client will have 180 days to provide an authorized payment method to reactivate a subscription and their Account, otherwise OMO has the right to permanently delete the Account, including all Client Data therein.
OMOLimited and its Affiliates may seek pre-authorization of Client’s payment card account prior to its purchase of OMO Services in order to verify that the payment card is valid and has the necessary funds or credit available to cover any purchase. Client agrees to approve such card pre-authorization and to pay any amounts for a Plan described on the Web Site, and authorizes OMO to charge all Fees to such card account. Client agrees to provide OMO updated information regarding its payment card account upon OMO’s request and any time the information earlier provided is no longer valid.
If Client agrees, OMO may elect that Client complete a bank debit mandate to enable bank debit payments. In such cases, OMO shall comply with all applicable national rules and regulations related to direct debit payments.
OMO uses GoCardless to process Client’s bank debit payments. More information on how GoCardless processes Client’s personal data and Client’s data protection rights, including Client’s right to object, is available at gocardless.com/legal/privacy/.
If OMO has not sought pre-authorization of Client’s payment card, then before the end of each payment interval, Client will be issued an electronic invoice for payment of the Fee of the next payment interval. Client must pay the invoice by the due date indicated on the invoice.
Upon delay with any payments, OMO may require the Client to pay interest on the delay (penalty for late payment) for the period that such payment is overdue. The interest rate for late payment due shall be 1% per month or the maximum allowed by local law, whichever is higher.
In addition to other rights and remedies OMO may have, if legally permitted to do so, OMO may offset any payment obligations to Client that OMO may incur under the Terms against any fees owed to OMO and not yet paid by Client under the Terms, or any other agreement between Client and OMO.
In connection with Client Data, Client affirms, represents, and warrants that: (i) Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions to use and authorize OMO to display or otherwise use the Client Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to its Client Data in a manner consistent with the intended Features of the OMO Services and these Terms, and to grant the rights and license set forth in these Terms, and (ii) Client Data, or OMO’s or any OMO’s licensee’s use of such Client Data pursuant to these Terms, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require the obtaining of a license from or paying any fees and/or royalties by OMO to any third party for the performance of any OMO Services which Client has chosen to be performed by OMO or for the exercise of any rights granted in these Terms, unless Client and OMO otherwise agree.
Client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through the OMO Service. If Client uploads Client Data to the OMO Services, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or their respective owners (including Users, persons and organizations), whether posted and/or uploaded by Client or made available on or through the OMO Services. By uploading Client Data to the OMO Services, Client authorizes OMO to process the Client Data. Client is responsible for ensuring that:
OMO does not guarantee any accuracy with respect to any information contained in any Client Data and recommends that Client carefully consider what it transmits, submits or posts to or through the OMO Services. Client understands that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that Client, and not OMO, is entirely responsible for all Client Data that is uploaded, posted, transmitted or otherwise made available through the OMO Services, by Client or its Users, as well as for any remedial actions taken by the OMO or other Clients or Users as a result of such Client Data.
Client will not use the OMO Service in any way to process (a) Sensitive Information or (b) Client Data that, in any manner, is prohibited by law or in violation of these Terms. OMO is not obliged to pre-screen, monitor or filter any Client Data, or its processing by the Client, in order to determine if it is Sensitive Information or unlawful in nature. However, if OMO, in its sole discretion, has reason to believe that Client is processing any unlawful Client Data or Sensitive Information, or the action of its processing is unlawful in nature, OMO has the right to:
a. notify the Client of such unlawful Client Data or Sensitive Information;
b. deny its use in the OMO Services;
c. demand that the Client bring its use of the OMO Services into compliance with these
Terms and applicable law;
d. temporarily or permanently remove the unlawful Client Data or Sensitive Information
from the OMO Services, restrict access to it or delete it.
If OMO is presented convincing evidence that the Client Data is not unlawful or Sensitive Information, OMO may, at its sole discretion, restore such Client Data or Sensitive Information, which was previously removed from the OMO Services, Account or access to which was restricted.
OMO Services are not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA). As such, Client may not use the OMO Services where its communications would be subject to such laws. In addition, Client may not use OMO Services in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
No Sensitive Information. CLIENT ACKNOWLEDGES THAT THE OMO SERVICES HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY CLIENT AGREES NOT TO USE THE OMO SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. OMO WILL NOT HAVE, AND OMOSPECIFICALLY DISCLAIMS, ANY LIABILITY THAT MAY RESULT FROM CLIENT’S USE OF THE OMO SERVICES TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.
OMO may use Client Data in an aggregated or anonymized format for research, educational and other similar purposes. OMO may not otherwise use or publicly display Client Data without Client’s written consent and respects Client’s right to exclusive ownership of Client Data. Unless specifically permitted by Client and otherwise set forth herein, Client’s use of the OMO Services does not grant OMO the license to use, reproduce, adapt, modify, publish or distribute the Client Data created by Client or stored in Client’s Account for OMO’s commercial, marketing or any similar purpose. Client expressly grants OMO the right to use and analyze aggregate system activity data associated with use of the OMO Services by Client and its Users for the purposes of optimizing, improving or enhancing the way the OMO Services operate, and to create new Features and functionality in connection with the OMO Services in the sole discretion of OMO.
Supplier may disclose a Client's confidential information to the extent compelled by law to do so. In such instance, Supplier will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure. If Supplier is compelled by law to disclose Client's confidential information as part of a civil proceeding to which Supplier is a party, and Client is not contesting the disclosure, Client will reimburse Supplier for its reasonable cost of compiling and providing secure access to that confidential information.
OMO’s Privacy Notice is available at www.omogmp.com/privacy.
The OMO Services, Platform, OMO Materials, OMO trade names and trademarks, and any associated intellectual property thereof are, solely and exclusively, owned and operated by OMO, its Affiliates or its respective third party vendors and hosting partners. OMO Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. Except as set forth in these Terms, Client’s use of the OMO Services and OMO Materials, and any parts or elements, does not grant to Client any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the OMO Materials is strictly prohibited unless Client has received the express prior written permission from OMO or the otherwise applicable rights holder. Client may not use OMO trade names and trademarks in any manner that disparages OMO or its products or services or portrays OMO in a false, competitively adverse or poor light. OMO reserves all rights to the OMO Services, Platform, OMO Materials and OMO trade names and trademarks not expressly granted in the Terms.
Subject to these Terms and the payment of the applicable Fee, OMO grants Client and its Users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for its personal, non-commercial use. Client shall not remove copyright and proprietary notices that are contained in any part of the Content. Client expressly acknowledges that it does not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the OMO Services. Client shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as expressly permitted by OMO.
If a Client or a User provides OMO with any Feedback, OMO shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the OMO Services.
Client or User hereby grants OMO a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use Feedback for any purpose. OMO shall have the right to modify or remove any Feedback provided in the public areas of the Web Site which the OMO deems, at its sole discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.
UNLESS OTHERWISE EXPRESSLY STATED BY OMO, THE OMO SERVICES, OMO MATERIAL, PLATFORM AND ANY CONTENT, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE OMO SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OMO AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
UNLESS OTHERWISE EXPRESSLY STATED BY OMO, OMO AND ITS AFFILIATES DO NOT WARRANT THAT THE OMO SERVICES AND ANY CONTENT OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE OMO SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE OMO SERVICES AND ANY CONTENT OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE OMO SERVICES OR THE PLATFORM THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPRESSLY STATED BY OMO, OMO AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE OMO SERVICES, OMO MATERIALS OR ANY WEB SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
IF THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS, SET FORTH IN THIS SECTION 10, MAY NOT APPLY TO OMO, AND CLIENT MAY HAVE ADDITIONAL RIGHTS AS SET FORTH IN LAW.
Client agrees to defend, indemnify and hold harmless OMO and its Affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of its use or misuse of the OMO Services, OMO Materials, representations made to OMO, its Affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. OMO reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which Client is required to indemnify OMO, and Client agrees to cooperate with such defense of these claims.
OMO shall not be liable to the Client or User for any consequences resulting from:
In addition, OMO and its Affiliates shall not be liable to the Client for any claim by any user, person, organization, or third persons against the Client arising out of the Client’s failure to:
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF OMO AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR THE SPECIFIC OMO SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS FOR NEGLIGENCE, IN CONTRACT OR TORT, MISREPRESENTATION OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS SET FORTH IN SECTION 5 “FEES/PAYMENT”.
EXCEPT FOR CLIENT’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 “INDEMNIFICATION”, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
These Terms and/or Client’s access to the OMO Services may be terminated for convenience in the following situations;
These Terms and/or Client’s access to the OMO Services may be terminated for default upon written notice to the other party as indicated in Section 15.6 “Notice”:
EXCEPT FOR CLIENT’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 “INDEMNIFICATION”, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
These Terms and/or Client’s access to the OMO Services may be terminated for default upon written notice to the other party as indicated in Section 15.6 “Notice”:
OMO has the right to suspend access to all or any part of the OMO Service or an Account, including removing Content, at any time, and for any period of time, for: (i) violation or suspected violation of these Terms, (ii) legal obligations (iii) bandwidth usage by Client or its Users of the OMO Service, any Features, or functionality to be significantly excessive in relation to other OMO Service users, or to protect the integrity, operability, and security of the OMO Service, effective immediately, with or without notice. Unless prohibited by law or legal process or to prevent imminent harm to the OMO Service or any third party, OMO typically provides notice in the form of a banner or email on or before such suspension. OMO will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the OMO Service. For any such suspension, OMO shall make the sole determination as to any credit or refund of prepaid Fees by the Client.
The OMO entity with whom Client is contracting under these Terms depends on the domicile of the Client. OMO determines the domicile of the Client based on the country indicated in the billing address of the Client.
In the event of a dispute, controversy or claim arising out of or in relation to these Terms, including but not limited to the formation, validity, breach or termination thereof, the parties shall attempt to solve the matter amicably in mutual negotiations. In the event a mutually acceptable resolution cannot be reached within a reasonable time, either party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth below. Notwithstanding the foregoing and subject to the terms and conditions set forth below, either party may seek injunctive relief with respect to any disputed matter to the extent possible under applicable law. Should an amicable settlement between parties not be possible, the dispute shall be finally solved by arbitration as designated herein subject to the terms and conditions set forth below. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) shall not be applied to these Terms. Any questions relating to these Terms which are not expressly or implicitly settled by the provisions contained in these Terms shall be governed by and construed in accordance with the following:
USA/Canada: For Clients domiciled in the United States or Canada, any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in New York, NY, using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of these Terms, the parties consent to (a) exclusive jurisdiction and venue in the United States Federal Courts located in New York, NY and (b) the laws of the State of Delaware as the governing law, without giving effect to any principles of conflicts of law. Use of the OMO Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section. The parties each agree that it shall bring any dispute against the other in its respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, the parties each agree that disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.
UK/Gibraltar: For Clients domiciled in the United Kingdom and Gibraltar, all disputes arising out of or in connection with the Terms, including any question regarding its existence, validity or termination, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “Arbitration Rules”) by one arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, appointed in accordance with the Arbitration Rules. The place of the arbitration shall be London, England. The language of the arbitration shall be English. The arbitration shall be commenced by a request for arbitration by either party, delivered to the other party. The request for arbitration shall set out the nature of the claim(s) and the relief requested. Except as otherwise specifically limited in these Terms, the arbitral tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief, and any such measures ordered by the arbitral tribunal shall, to the extent permitted by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such.
Each party retains the right to apply to any court of competent jurisdiction for interim and/or conservatory measures, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The existence and content of the arbitral proceedings and any rulings or awards shall be kept confidential by the parties and members of the arbitral tribunal except (i) to the extent that disclosure may be required of a party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, (ii) with the consent of all parties, (iii) where needed for the preparation or presentation of a claim or defense in this arbitration, (iv) where such information is already in the public domain other than as a result of a breach of this clause, or (v) by order of the arbitral tribunal upon application of a party. The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyers’ fees, as the arbitral tribunal shall deem reasonable. Any award of the arbitral tribunal shall be final and binding on the parties. Enforcement of any award may be sought in any court of competent jurisdiction. For all purposes of these Terms, the parties consent to (a) exclusive jurisdiction and venue in England and (b) the laws of England as the governing law, without giving effect to any principles of conflicts of law.
EU/Rest of World: For Clients domiciled in the European Union, the European Economic Area or all other countries not specifically referenced in these Terms, all disputes arising out of or in connection with the Terms, including any question regarding its existence, validity or termination, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “Arbitration Rules”) by one arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, appointed in accordance with the Arbitration Rules. The place of the arbitration shall be Harju County, Tallinn, Estonia. The language of the arbitration shall be English. The arbitration shall be commenced by a request for arbitration by either party, delivered to the other party. The request for arbitration shall set out the nature of the claim(s) and the relief requested. Except as otherwise specifically limited in these Terms, the arbitral tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief, and any such measures ordered by the arbitral tribunal shall, to the extent permitted by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such. Each party retains the right to apply to any court of competent jurisdiction for interim and/or conservatory measures, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The existence and content of the arbitral proceedings and any rulings or awards shall be kept confidential by the parties and members of the arbitral tribunal except (i) to the extent that disclosure may be required of a party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, (ii) with the consent of all parties, (iii) where needed for the preparation or presentation of a claim or defense in this arbitration, (iv) where such information is already in the public domain other than as a result of a breach of this clause, or (v) by order of the arbitral tribunal upon application of a party. The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyers’ fees, as the arbitral tribunal shall deem reasonable. Any award of the arbitral tribunal shall be final and binding on the parties. Enforcement of any award may be sought in any court of competent jurisdiction. For all purposes of these Terms, the parties consent to (a) exclusive jurisdiction and venue in Harju County, Tallinn, Estonia and (b) the laws of Estonia as the governing law, without giving effect to any principles of conflicts of law.
Use of the OMO Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section. Notwithstanding the foregoing, Client and OMO agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, or (iii) to file suit in a court of law to address intellectual property infringement claims.
The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between Client and OMO, and Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
These Terms are the entire agreement between Client and OMO regarding Client’s use of the OMO Services, OMO Materials and the Platform and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without OMO’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees. OMO may freely assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without restriction.
Failure of either party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
Except as otherwise specified in the Terms, all notices related to the Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim, which shall clearly be identifiable as “Legal Notices”, the day of sending by email. Billing-related notices to Client will be addressed to the relevant billing contact designated by Client. All other notices to Client will be addressed to the relevant Client system administrator designated by Client.