Welcome to Omny Studio, a leading on-demand audio publishing platform. These Terms and Conditions of Business ("Terms") explain our obligations as a service provider and your obligations as a customer. Please read them carefully.
These Terms apply to (a) our software products (including downloadable software products) ("Software"), (b) our hosted services (including hosted or cloud-based solutions) ("Hosted Services") and (c) our implementation, consulting and managed services ("Professional Services") as specified in an Enterprise Proposal, and to your use of each of them. These Terms include any document referred to in them, including an Enterprise Proposal (as defined below), Enterprise Agreement, information, user guides and other documentation that we produce in respect of our products and services ("Documentation").
These Terms are binding on any use of the Software, Hosted Services or Professional Services of 121cast Pty Ltd (if you are located in Australia) or 121cast, Inc. (if you are located in any other country) ("us, we, our or Omny") and apply to you from the earlier of (a) acceptance of an Enterprise Proposal (as defined below) by us and you (including electronic execution), (b) signing of an Enterprise Agreement by us and you, or (c) the time that Omny provides you with access to the Software, Hosted Services or Professional Services.
By requesting to use or using the Software, Hosted Services or Professional Services you acknowledge, represent and warrant that (a) you have read and understood these Terms and have the authority to act on behalf of any person for whom you are using the Service; (b) that you are at least 18 years old or, if you are under 18 years old but older than 13 years of age, that you have obtained permission from a parent or guardian to open an account and your parent or guardian agrees to these Terms; and (c) that you have the legal power and capacity to enter into these Terms. We do not offer our Professional Services to any person under the age of 13 years old under any circumstances.
If you are agreeing to these terms as an individual "you" refers to you individually. If you are agreeing to these terms as a representative of an entity, you represent that you have the authority to bind that entity and "you" refers to that entity.
If you do not agree with all of these terms, do not access or otherwise use the Software, Hosted Services or Professional Services.
Ordering Direct. You can order Software, Hosted Services or Professional Services by requesting an order online or in person to an Omny representative and selecting from the alternative ways in which Software, Hosted Services and Professional Services can be provided, such as the number of users you require ("Sales Order"). We will send you an Enterprise Proposal ("Enterprise Proposal") to indicate our acceptance of your Sales Order. The Enterprise Proposal incorporates these Terms.
Reseller Sales Orders. These Terms apply whether you purchase our Software, Hosted Services or Professional Services directly or through an Omny authorized reseller ("Reseller"). If you purchase through a Reseller, your Sales Order shall be as stated in the Sales Order placed by the Reseller for you and accepted by us, and the Reseller is responsible for the accuracy of any such Sales Order. Resellers are not authorized to make any promises or commitments on Omny's behalf, and we are not bound by any obligations to you other than what we specify in these Terms or in any Enterprise Proposal.
Administration. You must nominate your contacts and their contact details in a Sales Order so that we or a Reseller can communicate with you, and you must notify us if these details change. If so specified in an applicable Sales Enterprise Proposal, you will be able to authorize one or more people to operate your user account, and to use the Software and Hosted Services. You accept responsibility for the actions of each person that you authorize or enable to operate your user account, or to use the Software and Hosted Services.
Software – Customer Hosted. Where your Enterprise Proposal is in respect of customer hosted Software, subject to the provisions of these Terms, we grant you a non-exclusive and non-transferable license (with no right to sublicense) to install and use Software for the Term. In respect of such Software:
Omny Hosted Services. Where your Enterprise Proposal is in respect of Hosted Services, subject to the provisions of these Terms, we grant you a non-exclusive and non-transferable right to access and use the Hosted Services for the Term. In respect of such Hosted Services:
Professional Services. Subject to the provisions of these Terms, we will provide you with the Professional Services set out in an applicable Enterprise Proposal and/or Enterprise Agreement. We may subcontract the performance of any Professional Services or any support and maintenance services, but we will remain responsible to you for the delivery of those services. Unless stated otherwise in an Enterprise Proposal, we will retain all rights, title and interest in and to any materials (including software, documentation, deliverables, modifications, enhancements and derivative works) ("Service Materials") that are created by us or on our behalf in connection with any Professional Service or other products or services that we provide to you. To the extent that the ownership of any contribution by you or your employees or contractors to the creation of the Service Materials is not, by operation of law or otherwise, vested in Omny, you hereby assign and agree to assign to us all right, title and interest in and to such Service Materials, including without limitation all the Intellectual Property Rights (as defined in Section 5) therein, without the necessity of any further consideration, and you will cause your employees and contractors to do the same and waive all their moral rights in such Service Materials upon our request. Any Service Materials that we provide to you must only be used by you in relation to the applicable Software or Hosted Services, and your use of Service Materials is subject to the same terms and conditions that apply to the applicable Software or Hosted Services.
Restrictions. You shall be solely responsible for your actions and the actions of your users while using the Software and/or Hosted Services. Unless expressly stated otherwise in these Terms or your Enterprise Proposal:
Your Systems. You are responsible for (a) obtaining, deploying and maintaining your internal website(s), servers and other equipment and software used in the conduct of your business, and all computer hardware, software, modems, routers and other communications equipment necessary for you and your users to access and use the Hosted Services; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Hosted Services via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms or an Enterprise Proposal, we shall not be responsible for supplying any hardware, software or other equipment to you under these Terms.
Monetization. You must not make any attempt to monetize content on our Hosted Services via third party advertising networks or other outside business agreements ("Third Party Monetization") without our prior written approval. Requests for our permission to engage in third party monetization should be directed via email to email@example.com. If you opt-in to our programmatic ad product ("Omny Ads") for your content, you acknowledge that we cannot control the advertising content inserted into your show nor ad inventory will always be available in your geography. You remain in full control of ad placement in episodes and we will never run advertising content over your show without your express written permission. You will receive 70% of net advertising revenues, remitted to you using PayPal within 45 days of the end of each quarter if your earned balance is over USD$10.
Spotify. If you opt-in to distribute your content on Spotify, you must ensure all advertising and/or sponsorships messages contained in your content comply with Spotify's Advertising Editorial Policies. Advertising and/or sponsorships containing pornographic content, or for firearms, ammunition, weapons, cigarettes, tobacco or e-cigarettes, or that relates to political or religious organizations or paid advertising for any competitive music or audio streaming services, is not permitted.
Acceptable use. You agree not to use the Hosted Services to post, upload, email, transmit, display or make available in any way content or material that:
We neither endorse the contents of Your Data nor assume any responsibility to monitor, review or edit user or third party content for any illegal or offensive material contained therein, any infringement of third party Intellectual Property Rights (as defined in Section 5 below) arising therefrom or any crime facilitated thereby. We reserve the right to remove any content uploaded, posted, stored or transmitted using the Hosted Services by you or your users that we reasonably believe contravenes these Terms, without notice to you.
Technical Support. We will provide support services in relation to Software and the Hosted Services during the Term ("Technical Support") as described in the applicable Enterprise Proposal. Any additional software that we provide to you in connection with our Technical Support for Software (including minor and major releases or updates, patches, fixes, modifications, etc.) ("Updates") will be deemed to be Software for the purposes of these Terms. Unless otherwise specified in your Enterprise Proposal, fees in respect of Technical Support are payable in addition to all other fees and charges payable under these Terms and are billed at $19.95 USD per 15 minute block (or part thereof), charged to you at the conclusion of each instance of Technical Support we provide.
Availability. We will use commercially reasonable endeavors to make the Hosted Services available 24 hours a day, seven days a week, except for planned maintenance carried out during our maintenance window, unscheduled maintenance that we determine is required urgently or for circumstances beyond our reasonable control. TO THE EXTENT PERMITTED BY LAW, WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE AVAILABILITY OF THE HOSTED SERVICES OR THAT THE HOSTED SERVICES OR THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED, AND WE MAKE NO REPRESENTATION OR WARRANTY IN RELATION TO THE SUITABILITY OF THE HOSTED SERVICES OR THE SOFTWARE FOR USE BY YOU OR YOUR USERS.
Confidentiality. Except to the extent permitted or required by these Terms, each party must not use or disclose any of the other party's Confidential Information. You acknowledge and agree that we may use your Confidential Information for the purpose of performing our obligations to you under these Terms or as otherwise permitted by these Terms. Each party may also disclose Confidential Information when required to do so by law or any regulatory authority, and to its representatives whose duties reasonably require such disclosure, provided the disclosure is made on a confidential basis to the extent possible. Confidential Information of a party ("Discloser") means information treated by the Discloser as confidential or which the other party ("Recipient") knows (or ought to know) is confidential, and which is disclosed by the Discloser to the Recipient, whether before or after the acceptance of these Terms, as well as all notes and other records prepared by the Recipient based on or incorporating that information; but excludes information that: is in or subsequently enters the public domain other than as a result of a breach of confidentiality by the Recipient or any of its permitted discloses; is lawfully obtained by the Recipient from another person entitled to disclose such information; or is independently developed by the Recipient.
Data. We will treat any material that is uploaded by you or your users in the course of use of the Hosted Services ("Your Data") as your property. The term "Your Data" includes text, data, photos, video, audio, Personal Information and anything else that you upload or transmit using the Hosted Services. You grant us a non-exclusive, worldwide, royalty-free and irrevocable licence and right to collect, use, copy, store, transmit, display, publicly perform, modify and create derivative works of Your Data for the purpose of providing the Hosted Services to you, as required for benchmarking, analysis and the enhancement of the Software and Hosted Services and as otherwise permitted by these Terms, and you warrant that you have the right to grant such license and right to us. This license continues even if you cease using our services or terminate this agreement. Your Data will be held in encrypted format at all times in the hosted servers to maintain confidentiality and ensure security of Your Data. You agree that we may disclose Your Data to our service providers and transmit Your Data to and from our service providers, and you agree that those service providers can also store and transmit Your Data, for purposes permitted by these Terms. Please see our data processing terms set out in Annex A (Data Protection Addendum) ("Addendum") for further information on how we process and disclose personal data forming part of Your Data under these Terms.
Data protection and use of third parties. You agree that your use of the Hosted Services involves use of systems, networks and facilities that are not owned, controlled, managed or operated by us we are not responsible if any of Your Data is lost, corrupted, intercepted, stored or accessed across these systems, networks and facilities. The use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Hosted Services and Your Data. We cannot and do not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient. Where your use of the Software, Hosted Services or Professional Services involves creating a user account and password, you acknowledge that you are solely responsible for maintaining the confidentiality of your password (and for ensuring that your end users do the same) and agree that you will not allow others to use any aspect of your account information. Please see our data protection addendum set out in Annex A (Data Protection Addendum) for further information on how we process and disclose personal data forming part of Your Data under these Terms.
Compliance with laws. Without limiting the terms of our data processing terms set out in Annex A (Data Protection Addendum), you agree that you and your users comply with all applicable laws, regulations and industry codes (including data protection laws) in connection with the use of the Software and the Hosted Services. You agree that you are solely responsible for considering and complying with your obligations to third parties and your obligations under all applicable laws, including notifying and obtaining the consent of third parties (where applicable), in relation to your use of the Hosted Services, and the use, transfer and disclosure of Your Data as contemplated by these Terms. By uploading Your Data, you represent and warrant to us that Your Data and its transmission and use by us and our service providers as contemplated by these Terms will not contravene any laws and that you have the necessary rights, consents and licences to make Your Data available to us to deal with as contemplated by these Terms.
Data and IPR indemnity. You shall indemnify, defend and hold us harmless in respect of any loss, expense, liability or damage of any nature or kind which we suffer in connection with Your Data, including any claim brought by a third party that alleges that Your Data, or your or your users' use of the Hosted Services infringes any intellectual property or other right of a third party, or contravenes any law. This indemnity includes you indemnifying for all legal expenses reasonably incurred by us, and is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination, completion or expiration of your use of our products and services. We do not need to incur expense or make any payment before enforcing this right of indemnity. We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you in these Terms and, in such case, you agree to cooperate with our defence of such claim.
Backups and retention. Although we use backup procedures in relation to our Hosted Services, we do not make any representation or warranty that these measures will be effective at all times. We recommend that you keep backups of any material that you upload. You acknowledge and agree that we have no obligation to retain Your Data following the end of the Term and that Your Data may be (and in certain cases must be) irretrievably deleted by us any time following the expiry, termination or cancellation of your use of our products and services.
Exclusive property of Omny. You agree that any and all Intellectual Property Rights and other proprietary rights that subsist in or arise in connection with the Software, the Documentation or the Hosted Services, including Updates and modifications to any of them, anywhere in the world, are our exclusive property. You have no right in or to the Software, the Documentation or the Hosted Services apart from the rights expressly granted to you by these Terms and any rights granted by law which cannot be excluded by contract with you. We warrant to you that we have the right to grant the licences referred to in these Terms in the Territory.
IPR definition. In these Terms, Intellectual Property Rights means all rights in or to any patent, invention, copyright, work, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights.
Business name and logo. You grant us a non-exclusive, worldwide, royalty-free and irrevocable license to place and remove your business name, logo and industry type on our website and any of our marketing collateral. These Terms do not grant you the right to use any of our branding or logos, whether for commercial or non-commercial use.
Copyright complaints. We take intellectual property rights seriously. In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and, at our sole discretion, access to the service for users who are deemed to be repeat infringers. View our copyright policy.
Term. The period for which you are permitted to use the Software, Hosted Services or Professional Services shall be as specified in an Enterprise Proposal ("Term") and may include a minimum initial term commencing on the date of an Enterprise Proposal ("Initial Term") and renewal terms ("Renewal Term").
Renewal. IMPORTANT NOTICE: AFTER THE INITIAL TERM, AND FOLLOWING THE END OF EACH SUBSEQUENT RENEWAL TERM, UNLESS OTHERWISE SPECIFIED IN AN ENTERPRISE PROPOSAL, THE TERM OF THIS AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR A FURTHER RENEWAL TERM AS SPECIFIED IN THE ENTERPRISE PROPOSAL. IF YOU HAVE PROVIDED US WITH DIRECT DEBIT AUTHORIZATION, THE FEES FOR THE RENEWAL TERM WILL AUTOMATICALLY BE DEDUCTED FROM YOUR NOMINATED BANK ACCOUNT AT THE COMMENCEMENT OF THE RENEWAL TERM UNLESS YOU HAVE AGREED A PAYMENT PLAN WITH US, IN WHICH CASE YOUR PAYMENT PLAN WILL ROLLOVER AND CONTINUE FOR THE RENEWAL TERM. IF YOU DO NOT WANT THE TERM TO AUTOMATICALLY RENEW FOR A FURTHER RENEWAL TERM, YOU MUST NOTIFY US AT LEAST 30 DAYS BEFORE THE START OF THE NEXT RENEWAL TERM.
Suspension or cancellation for breach. We may suspend your access to the Software, Hosted Services or Professional Services without notice to you if we reasonably believe that you or your any of your users have breached these Terms. Any suspension pursuant to this clause will not entitle you to any refund, credit or right to terminate these Terms. We will notify you of such a breach and our actions.
Termination for material breach. Either party may terminate their obligations pursuant to these Terms at any time immediately, or at such later date as that party chooses, by written notice to the other party if (a) the other party materially breaches these Terms; or (b) if you infringe our Intellectual Property Rights. A breach of these Terms by one of your users shall be deemed a breach of these terms by you. Termination of this agreement by us will result in the cancellation of your access to the Software, Hosted Services or Professional Services and the deletion of all material that you or your users have uploaded in the course of using the Hosted Services ("Your Data"). Any cancellation pursuant to this clause will not entitle you to any refund or credit. We are not responsible for any loss suffered by you or any third party as a result of our deletion of Your Data pursuant to this clause. We will notify you of such a breach and our actions.
Insolvency Event. Either party may terminate their obligations pursuant to these Terms at any time immediately, or at such later date as that party chooses, by written notice to the other party if the other party is subject to an Insolvency Event. In these Terms, Insolvency Event means in relation to a party, where that party becomes subject to any form of insolvency administration; ceases to carry on business; ceases to be able to pay its debts as they become due; any step is taken by a mortgagee or chargee to take possession or dispose of the whole or part of the that party's assets, operations or business; any step is taken to enter into any arrangement between that party and its creditors; or where any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person in respect of the whole or part of that party's assets, operations or business.
Cease use. Upon termination or expiration of the Term for any reason, you and your users must cease all use of the Software, the Hosted Services and the Documentation. Within 30 days after termination or expiration of the Term, you must, at our election, either destroy or return to us all copies of the Software, Documentation and our Confidential Information then in your possession, custody or control.
Usage fees. Your Online Order and any relevant Enterprise Agreement Proposal will set out the fees and other charges payable by you for use of Software, Hosted Services and in respect of any Professional Services ("Fees"). Fees payable, including but not limited to monthly subscription fees, are subject to change upon 30 days' notice from us, unless otherwise stated in an applicable Enterprise Agreement or Online Order. Unless otherwise specified in your Enterprise Proposal, the Fees payable are exclusive of fees for technical support.
Unpaid Access. If your Enterprise Proposal specifies that you have been granted access only to unpaid features of the Software, Hosted Services or Professional Services ("Unpaid Access"), then we will not charge you any Fees. You will not be required to submit direct debit or credit card details prior to being granted Unpaid Access. You may choose to submit a further Sales Order requesting access to paid features of the Software, Hosted Services or Professional Services ('Paid Access'), however your request for Paid Access must be accompanied by valid credit card or debit card details in order to be processed.
Free trials. If you have been granted Paid Access pursuant to a free trial offer ("Free Trial"), unless you provide us with valid credit card or direct debit details prior to the conclusion of the Free Trial period, your access to all paid features of the Software, Hosted Services or Professional Services will be cancelled and you will be granted Unpaid Access, subject to confirmation via Enterprise Proposal.
Fees where sale by Reseller. If you purchase any Software, Hosted Services or Professional Services through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use such products if we do not receive our corresponding payment from the Reseller.
Initial fees. If specified in an Enterprise Proposal, fees may be payable upfront prior to commencement of a Software license or access to the Hosted Services. If so, once we have received any initial Fees, we will provide you with the applicable license keys (for Software) and login details (for Hosted Services) by sending these to the primary contact email address nominated on the Order. You acknowledge that your right to use any Software or Hosted Service is conditional upon us having received payment of Fees specified in an Enterprise Proposal.
Payment terms. You agree to pay all Fees in accordance with these Terms and any Enterprise Proposal or Enterprise Agreement. We require you to provide valid credit card or direct debit details in order to make Fee payments. Fees are billed monthly in USD, unless otherwise specified in your Enterprise Proposal. If no payment terms are specified in an Enterprise Proposal, the Fees must be paid within 30 days from the date of receipt of an applicable invoice. Except as expressly provided in these Terms or in any Enterprise Proposal, and to the extent permitted by law, all Fees and any other amounts paid or payable under these Terms or any Enterprise Proposal are non-refundable, non-cancellable and not subject to any credits. For the avoidance of doubt, no refunds or credits will be provided for unused access to the Software, Hosted Services or in respect of changes in usage levels or usage limits.
Direct debit. If you have authorized us to direct debit your Fees from your nominated bank account, your Fees will automatically be deducted from your nominated bank account on the commencement date specified in your Enterprise Proposal and in accordance with clause 6 for any Renewal Term, unless you have agreed a payment plan with us, in which case the Fees will be deducted in accordance with that agreed payment plan.
Insufficient funds. Should your Fee payment to us fail on the specified billing date for whatever reason, we will make the following attempts be to charge your credit card or nominated bank account at the following intervals: (a) 3 days after first failed attempt; (b) 5 days after second failed attempt; and (c) 7 days after third failed attempt. If we are unsuccessful in procuring payment after 3 attempts, we will suspend your access to paid features of the Software, Hosted Services or Professional Services without notice to you. Any suspension pursuant to this clause will not entitle you to any refund, credit or right to terminate these Terms.
No set off. All amounts payable under these Terms must be paid in full without set-off, deduction or other withholding of any amount. Should you be required by any law or regulation to make any deduction on account of tax or otherwise on any sum payable under these Terms, the sum payable will be increased by the amount of such tax to ensure that we receive a sum equal to amount to be paid under these Terms.
Sales tax. All Fees payable under these Terms are inclusive of any sales tax, value added tax or goods and services tax ("Sales Tax") that is payable on any supply made under these Terms by us to you.
Usage limits. The Enterprise Proposal may specify certain limits ("Usage Limits") in relation to your use of the Software or Hosted Services (such as the maximum number of users in both cases, and in the case of Hosted Services, certain data, bandwidth or storage limits). If these Usage Limits are exceeded at any time, you agree to pay us any additional Fees that are set out in the Enterprise Proposal. Such additional Fees will be automatically deducted from your nominated bank account via direct debit, if you have authorised us to do so. For Online Orders, you agree not to exceed Usage Limits of 1TB of bandwidth per month. Should you exceed these Usage Limits, you will be contacted to discuss moving you onto an Enterprise Agreement.
Missed payments. We will automatically charge up to six (6) months worth of access in one transaction for missed payments.
Performance warranty. We warrant that (i) the Software and Hosted Services shall perform materially in accordance with the requirements and specifications agreed in these Terms and any Enterprise Proposal or Enterprise Agreement and (ii) except as otherwise provided in these Terms, the functionality of the Software and Hosted Services will not be materially decreased during the Term. For any breach of either such warranty, your exclusive remedy shall be the re-supply of the Software or Hosted Services, or a refund of a reasonable amount of Fees to compensate for the decreased functionality, at our option.
Capacity warranty. Each party represents and warrants that it has the legal power to enter into these Terms.
DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
LIABILITY CAP. TO THE EXTENT PERMITTED BY LAW, OUR CUMULATIVE LIABILITY TO YOU IN RESPECT OF ALL CLAIMS MADE BY YOU UNDER OR IN CONNECTION WITH THESE TERMS, WHETHER ARISING OUT OF BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER TORT, MISREPRESENTATION, UNDER STATUTE OR OTHERWISE, WILL NOT EXCEED IN THE AGGREGATE THE AMOUNT PAID BY YOU TO US FOR SOFTWARE, HOSTED SERVICES AND PROFESSIONAL SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
NO CONSEQUENTIAL LOSS LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA, LOSS ARISING FROM INTERRUPTION TO BUSINESS, LOSS OF GOODWILL OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, MISREPRESENTATION OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Definition of Claim. In these Terms, Claim means claim, cause of action, suit, proceedings, judgment, debt, fine, penalty, damage, loss, cost, expense or liability of any kind.
Disputes. All disputes arising out of these Terms must be referred within fourteen (14) days of the dispute to a senior executive appointed by both parties, who must together meet with the view to resolving the dispute. If the dispute is not resolved within seven (7) days of that meeting, the managing directors, CEOs or equivalent of both parties will meet to resolve the dispute, and if the dispute is still not resolved then the matter will be referred to mediation within 7 days of the date of the last meeting. If a matter is referred to mediation, such mediation may occur electronically by video link or otherwise will be held in King County, State of Washington, United States if you are located in Canada or the United States, in Melbourne, the State of Victoria, Australia if you are located outside Canada and the United States, or such other place as may be agreed by the parties. The parties agree to share equally the costs of the mediator, and both parties may be represented by a duly qualified legal practitioner. Either party may commence court proceedings relating to any dispute arising from the agreement at any time where the party seeks urgent interlocutory relief.
Force majeure. Neither party shall be responsible for failure or delay of performance of an obligation if caused by (i) an act of war, terror, hostility or sabotage, (ii) an act of God, flood, fire or earthquake, (iii) electrical, Internet, or telecommunication outage or any other problem that is not caused by the obligated party, (iv) government restrictions (including the denial or cancellation of any license), or any other event outside the reasonable control of the party with that obligation ("Force Majeure Events"). Each party will use reasonable efforts to mitigate the effect of a Force Majeure Event. If such event continues for more than thirty (30) days, either party may terminate the Term upon written notice. This clause does not excuse either party of its obligations to take reasonable steps to mitigate the effects of a Force Majeure Event.
Notices. Any notice or communication given to a party under these Terms is only given if it is given in writing and either (i) delivered or posted to the party at its address and marked for the attention of the relevant department of officer, or (ii) faxed or sent by email to the party at its fax number or email address, or (iii) delivered by Omny through the Hosted Service. If a party gives the other party 3 business days' notice of a change of its address, email address of fax number, any notice or communication is only given by that party if it is delivered, posted, emailed or faxed to the latest address, email address or fax number. Any notice or communication is to be treated as given at the following time: If it is delivered, when it is left at the relevant address; if it is sent by post, 2 (or in the case of a notice or communication posted to another country, 5) business days after it is posted; if it is sent by fax, as soon as the sender receives from the sender's fax machine a report of an error free transmission to the correct fax number; if it is sent by email, as soon as the sender sends the email without indication of a subsequent sending error or rejection response; and if it is sent through the Hosted Service, at the time of posting. However, if any notice or communication is given on a day that is not a business day, or after 5pm on a business day in the place of the party to whom it is sent, it is to be treated as having been given at the beginning of the next business day.
U.S. Government Customers. If you are a Federal Government entity, Omny provides the Software and Hosted Services, including related software and technology, for ultimate Federal Government end use solely in accordance with the following: Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Software and Hosted Services include only those rights customarily provided to the public, as defined in these Terms. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in these Terms.
Export. The Software and Hosted Services utilize software and technology that may be subject to United States, Canadian and other foreign export controls. You must comply with those controls and laws. Without limiting the foregoing, you acknowledge and agree that the Software and Hosted Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, Embargoed Countries), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Software and/or Hosted Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Software and Hosted Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. We and our licensors make no representation that the Hosted Services are appropriate or available for use in other locations. You may not use any information acquired through the use of the Software or Hosted Services, for nuclear activities, chemical or biological weapons, or missile projects.
Entire agreement. These Terms (and any addendums (with appendices), documents or web links incorporated by reference) are the entire agreement between us and you regarding the Software, Hosted Services and Professional Services and supersede all prior agreements, discussions, and representations regarding the subject matter hereof.
Conflict. In the event of any conflict or inconsistency between the terms of this Agreement and the subject matter of the Addendum set out in Annex A (Data Protection Addendum), the terms of this Agreement will prevail, but only to the extent of that inconsistency or conflict.
Severability. If any provision of these Terms shall be deemed invalid, illegal, void or for any reason unenforceable, that provision shall be deemed to be severable and shall not affect the validity or enforceability of any other provision.
Independent contractors. The parties are independent contractors and these Terms do not create a relationship of employment, agency, joint venture or partnership between the parties.
No assignment. You may not, whether by merger, acquisition, sale of assets, operation of law, or otherwise, assign your rights or delegate your obligations under these Terms without our prior written consent.
Amendment must be in writing. An amendment of these Terms by you may only be agreed in writing signed by us.
No waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
Governing law. If you are located in Canada or the United States, these Terms and the rights and obligations of the parties to and under these Terms shall be governed by and construed under the laws of the United States and the State of Washington. If you are located outside of Canada and the United States, these Terms and the rights and obligations of the parties to and under these Terms shall be governed by and construed under the laws of the State of Victoria, Australia. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any disputes arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance or termination, or any dispute between the parties arising from the parties' relationship created by these Terms, shall be heard in the state and federal courts located in King County, State of Washington if the laws of the United States and the State of Washington apply, or in the courts of Victoria, Australia if the laws of the State of Victoria, Australia apply, and the parties hereby consent to the exclusive jurisdiction and venue in such courts.
Survival. The following provisions will survive any termination or expiration of the Term: confidentiality and data protection, intellectual property rights, fees, liability, and general.
Definitions. Terms which are capitalized but which are not defined in these Terms have the meaning given to them in the Enterprise Proposal.
Language. The Parties have expressly agreed that this agreement and all ancillary agreements, documents or notices relating thereto be drafted solely in the English language.
Miscellaneous. In these Terms, unless the contrary intention appears: (laws) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re‑enactments or replacements; (person) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; (singular, plural and gender) the singular includes the plural and vice versa, and a gender includes other genders; (headings) headings are for ease of reference only and do not affect interpretation; (executors, administrators, successors) a reference to a party is to either your or us (or both), and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes; (grammar) another grammatical form of a defined word or expression has a corresponding meaning; (meaning not limited) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; (time) a reference to time is a reference to time in Toronto, Canada if you are located in Canada, in Seattle, Washington if you are located in the United States or in Melbourne, Australia if you are located outside Canada and the United States; (day) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later; (currency) unless stated otherwise, a reference to dollar or $ is to United States currency; and (preparation of document) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms or any part of it.