Omnify Service Agreement

Welcome to Omnify! 

This Software as a Service Agreement (“Agreement”) is between Omnify Inc., having an office at 800 West El Camino Real, Suite 180, Mountain View, CA, 94040 (“Omnify”), and you or the entity you represent (“you” and “your”). This Agreement governs your use of the Services.

This Agreement is effective upon the date you first access or use the Services (“Effective Date”) and continues until you or Omnify terminates it (this period, the “Term”). Capitalized terms used in this Agreement that are not defined inline are defined in the Definitions.

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1. DEFINITIONS 
   
   1. “Customer” is as defined in the recitals.
   2. “Customer Content” means all data and materials provided by Customer to Omnify for use in connection with the Services, including, without limitation, Customer applications, data files, and graphics.
   3. “Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Omnify to Customer regarding the use or operation of the Services.
   4. “Permitted Location/Location/Locations” means the unique identity of data relating to specific location/stores, and/or employees of Customer who shall be granted the access of Service.
   5. “Software” means the object code version of proprietary software presently known as ‘Omnify’, of which Customer is provided access as part of Service
   6. “Services” means the use of Software that enables Customer to manage/undertake reservation services and/or membership management that is hosted by Omnify or its services provider and made available to the Customer over the internet.
   7. “Subscription Term” shall mean that period specified in a Schedule during which Customer will have online access and use of the Software through Omnify’s Services. The Subscription Term shall renew for successive 24-month periods unless either Party delivers written notice of non-renewal to the other Party at least 30 days prior to the expiration of the then-current Subscription Term.
   8. “Subscription Start Date” means the date on which an Omnify Account is created and subscription is activated for applicable Location.

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2. SERVICES
   
   1. During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty-free, territory specific, right to access and use the Services solely for your internal business operations subject to the terms of this Agreement and up to the number of Permitted Location(s) documented in the Schedule.
   2. The Customer acknowledges that this Agreement is a services agreement and Omnify will not be delivering copies of the Software to Customer as part of the Services.
   3. Restrictions: Customer shall not, and shall not permit anyone to: Customer shall not, and shall not permit anyone to: 
      
      1. copy or republish the Services or Software;
      2. make the Services available to any person other than authorized Permitted Location(s);
      3. use or access the Services to provide time-sharing or other computer hosting services to third parties; 
      4. modify or create derivative works based upon the Services or Documentation;
      5. remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software used to provide the Services or in the Documentation;
      6. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services, except and only to the extent such activity is expressly permitted by applicable law, or;
      7. access the Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Omnify shall own all right, title and interest in and to the Software, Services, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein.
   4. Customer agrees to assign all right, title and interest it may have in the foregoing to Omnify.

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3. CUSTOMER RESPONSIBILITY
   
   1. Compliance with Laws. Customer shall comply with applicable local, state, national and foreign laws in connection with its use of the Services. Customer acknowledges that Omnify exercises no control over the content of the information transmitted by Customer or Permitted Location(s) user through the Services. Customer shall not upload, post, reproduce or distribute any information, Software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
   2. Unauthorized Use; False Information. Customer shall: 
      
      1. Notify Omnify immediately of any unauthorized use of any password or user identification or any other known or suspected breach of security;
      2. Report to Omnify immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by Customer or any Permitted Location(s) user;
      3. Not provide false identity information to gain access to or use Services.
   3. License from Customer. Subject to this Agreement, Customer shall grant to the Omnify a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the Services to Customer.
   4. Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. Omnify or its licensors retain all ownership and intellectual property rights to the Services, Software programs, and anything developed and delivered under the Agreement. Third party technology that may be appropriate or necessary for use with some Omnify programs is specified in the program Documentation or ordering document as applicable. Customer’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by Omnify and not under the Agreement.

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4. CUSTOMER RESPONSIBILITY
   
   1. Fees. For grant of right to avail Services, Omnify shall charge to the Customer a Subscription Fees as more specifically set out in the Fee Schedule. Unless specifically agreed, the said Subscription Fees shall be exclusive of any and all taxes, expenses, etc. 
   2. Invoicing and Payment. Unless otherwise provided in the Subscription Fee Schedule, Customer shall be liable to pay on or before Subscription Start Date. The Subscription Fees for each location is valid for a period of twelve (12) months from the Subscription Start Date and the Customer shall be liable for payment of the entire year Subscription Fee, irrespective of the payment terms agreed between Parties. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in United States Dollars ($ USD) and must be paid by Customer to Omnify in United States Dollars.
   3. Expenses. The Customer shall reimburse Omnify for its reasonable, out-of-pocket travel and related expenses incurred in performing the Other Services. Omnify shall notify the Customer prior to incurring any such expense.
   4. Taxes. Omnify shall bill the Customer for applicable taxes as a separate line item on each invoice. The Customer shall be responsible for payment of all sales taxes, value added taxes, or similar charges relating to the Customer’s purchase and use of the Services.
   5. Tax Jurisdictions. Depending on the law of the relevant jurisdictions, services sold by Customers through Omnify for purchases of classes, classpacks, program, parties, etc. and transmitted to locations inside and outside of the United States may be subject to tax. 
   6. Information for obligations. Omnify may request additional information from its Customers, which will require You to provide certain information, such as Your legal name, tax identification number, address, phone number, e-mail address, and account information for Your bank account, as necessary to fulfil its tax obligations.

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5. TERM AND TERMINATION
   
   1. Term. The Term of this Agreement shall begin on the Effective Date and shall continue unless terminated in accordance with this Section. 
   2. Termination. Either party may terminate this Agreement immediately upon a material breach by the other party that has not been rectified within thirty (30) days after receipt of notice of such breach. 
   3. Suspension for Non-Payment. Omnify reserves the right to suspend delivery of the Services if Customer fails to timely pay any undisputed amounts due to Omnify under this Agreement, but only after Omnify notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension of the Services shall not release Customer of its payment obligations under this Agreement. Customer agrees that Omnify shall not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to suspension of the Services resulting from Customer’s nonpayment.
   4. Suspension for Ongoing Harm. Omnify reserves the right to suspend delivery of the Services if Omnify reasonably concludes that Customer or a Permitted Location(s) user use of the Services is causing immediate and ongoing harm to Omnify or other related party. In the extraordinary case that Omnify must suspend delivery of the Services, Omnify shall use best commercial efforts to notify the Customer of the suspension at the earliest. Omnify shall not be liable to the Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Services in accordance with this Section 5.4. Nothing in this Section 5.4 will limit Omnify’s rights under Section 6.

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6. EFFECT OF TERMINATION 
   
   1. Upon termination of this Agreement or expiration of the Subscription Term, Omnify shall immediately cease providing the Services and all usage rights granted under this Agreement shall terminate.
   2. If Omnify terminates this Agreement due to a breach by Customer, then Customer shall immediately pay to Omnify all amounts then due under this Agreement and to become due during the remaining term of this Agreement, but for such termination. If Customer terminates this Agreement due to a breach by Omnify, then Omnify shall immediately repay to Customer all pre-paid amounts for any unperformed Services scheduled to be delivered after the termination date. 
   3. Upon termination of this Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the Parties.

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7. CONFIDENTIALITY
   
   1. The Fee Schedule and all information shared with the Customer shall be kept confidential by the Parties hereto and shall not be disclosed by either Party to any third party except as required by law, regulation, court order or government notification, and on a need-to-know basis to each Party’s employees, accountants, auditors, investors, lenders and legal counsel of each Party;
   2. Neither Party shall furnish to any third party, firm or corporation any information as to the methods employed in the business of the other Party hereto or its database files or any information relating to its subscribers.

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8. WARRANTY
   
   1. Warranty. Omnify represents and warrants that it shall provide the Services in a professional manner consistent with general industry standards and that the Services shall perform substantially in accordance with the Documentation. For an breach of a warranty, the Customer’s exclusive remedy shall be provided in Section 5.
   2. Services are provided on an “as is” and “as available” basis. Omnify disclaims any and all warranties, whether express, implied, statutory or otherwise, including without limitation the implied warranties of non-infringement, merchantability and fitness for a particular purpose. Omnify does not warrant that services or any part thereof, or use thereof will be error-free, uninterrupted, secure or virus free, will meet quality and performance requirements, or will be corrected for any defects within a stipulated period pursuant to any service level agreement.
   3. The Customer understands that in using omnify services, sensitive information may travel through third-party infrastructures that are not under Omnify’s control. Omnify makes no warranty with respect to the security of such third-party infrastructures. Customer assumes the entire risk of and shall not hold us responsible for any alteration, compromise, corruption or loss of Customer data, notwithstanding any security or other measure that may be provided by us.

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9. LIMITATION OF LIABILITY
   
   1. Neither party (nor any licensor or other subcontractor of omnify) shall be liable for indirect, incidental, special or consequential damages, including, without limitation, damages for lost business, profits, data or use of any service, incurred by either party or any third party in connection with this agreement, regardless of the nature of the claim (including negligence), even if foreseeable or the other party has been advised of the possibility of such damages. Neither party’s aggregate liability for damages under this agreement, regardless of the nature of the claim (including negligence), shall not exceed the actual fees paid by the Customer under this agreement and to the maximum extent of 12 months preceding the date the claim arose, whichever is lesser. The foregoing limitations shall not apply to the Parties’ obligations (or any breach thereof) under Indemnification Section.

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10. INDEMNIFICATION 
    
    1. Indemnification by Omnify. If a third party makes a claim against Customer that the Services infringes any patent, copyright or trademark, or misappropriate any trade secret, Omnify shall defend Customer and its directors, officers and employees against the claim at Omnify’s expense and Omnify shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such Parties or agreed to in a written settlement agreement signed by Omnify, to the extent arising from the claim. Omnify shall have no liability for any claim based on (a) the Customer Content, (b) modification of the Services not authorized by Omnify, or (c) use of the Services other than in accordance with the Documentation and this Agreement. Omnify may, at its sole option and expense, procure for Customer the right to continue use of the Services, modify the Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date. 
    2. Indemnification by Customer. If a third party makes a claim against Omnify that the Customer Content infringes any patent, copyright or trademark, or misappropriate any trade secret, Customer shall defend Omnify and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such Parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
    3. Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defence and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defence and settlement of the claim.

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11. PAYMENTS 
    
    1. Omnify Payments. Omnify operates its own payment collection feature. Your use of the Omnify Payments in governed by this Section.
    2. Accepting Payments. Omnify Payments allows Customers to process credit or debit card transactions and facilitates faster payout. By setting up Omnify Payments, You agree to the terms that appear in these Terms and/or on the Omnify Fee Schedule regarding the use of Omnify Payments.
    3. Third Party Agreement. In setting up Omnify Payments, You may be instructed to agree to terms of service offered by Stripe. Stripe is an independent party from Omnify and Omnify is not responsible for the contents of their terms of service. Should Stripe’s terms of service differ from these Terms, such differences shall not modify these Terms in any manner. 
    4. Reserves. By using Omnify Payments, You agree that Omnify may place a portion of Your sales in reserve for a period of time to cover losses, chargebacks, refunds, etc. Any reserve period and amount shall be addressed in the Fee Schedule. The amount of reserves and the length of the time in which they are held are subject to change at Omnify’s sole discretion. Should the reserve period or the amount withheld change, Omnify will make reasonable efforts to update the Fee Schedule, or add annexure to the Fee Schedule with updated changes. 
    5. Fees. The Fees of Omnify Payments shall be found on the Fee Schedule, for any item not addressed in the Fee Schedule, the Fee shall be the same as on Stripe’s Pricing and Fees page (https://stripe.com/in/pricing). The Fees associated with Omnify Payments are subject to change, in Omnify’s sole discretion. By using Omnify Payments, You agree to the Fees as set by Omnify. 
    6. Free Plan eligibility for Payouts. Customers using Omnify Payments in Omnify’s Free Plan shall only be eligible for monthly payouts when utilizing Omnify Payments unless a different Payout Schedule is authorized by Omnify. 
    7. Chargebacks/Dispute. Omnify Customers may be charged a fee for any chargeback on credit card, debit card or ACH transaction that is processed through Omnify Payments. This Fee is deducted from Your Payout but it returned to You if You win the Dispute. Fees are subject to change. 

12. MISCELLANEOUS 
    
    1. Non-Exclusive Service. The Customer acknowledges that Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Omnify’s ability to provide the Services or other technology, including any features or functionality first developed for Customer, to other Parties.
    2. Omnify Personal Data Obligations. In performing the Services, Omnify will comply with the Omnify Services Privacy Policy, which is available at (http://www.getomnify.com/privacy-policy) and incorporated herein by reference (the “Omnify Policy”). The Omnify Policy is subject to change at Omnify’s discretion; however, Omnify policy changes will not result in a material reduction in the level of protection provided for Customer Data. For clarity, in the event of any conflict or contradiction of any terms of this Agreement and the terms of an Omnify Policy, the terms and conditions of this Agreement shall supersede.
    3. Assignment. Neither Party may assign this Agreement or any right under this Agreement, without the consent of the other Party which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party to which this Agreement relates, whether by merger, asset sale or otherwise. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns. 
    4. Subcontractors. Omnify may employ subcontractors in performing its duties under this Agreement, provided, however, that Omnify shall not be relieved of any obligation under this Agreement as a result of its use of any subcontractors. Omnify shall supervise the activities and performance of each subcontractor and shall remain wholly and fully responsible and liable for the actions and omissions of each subcontractor and/or for any act or failure to act by such subcontractor in connection with or related to the Agreement.
    5. Force Majeure. Each party shall be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control (including without limitation, acts of God, acts of terrorism or war, communication line failures, and power failures) (“Force Majeure Events”) so long as the Party continues to use commercially reasonable efforts to resume performance, except, in each case, to the extent that the Party claiming the benefit of the Force Majeure Event is at fault in causing or failing to prevent such delay or default. Notwithstanding the foregoing, “Force Majeure Event” expressly excludes: (a) economic hardship; (b) pandemics and epidemics; (c) a strike, walkout, lockout, labor shortage or labor dispute; and (d) any non-performance of a subcontractor or affiliate of Omnify, regardless of cause except for a Force Majeure Event affecting such subcontractor or affiliate. If an Force Majeure Event continues for a period of five (5) days, Customer may terminate this Agreement with immediate effect upon written notice to Omnify. Upon the occurrence of a Force Majeure Event, Omnify shall invoke its disaster recovery plan and provide disaster recovery and business continuity services. The occurrence of a Force Majeure Event shall not relieve Omnify of its obligation to implement its disaster recovery plan and provide disaster recovery services, except to the extent such Force Majeure Event prevents such implementation.
    6. Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either Party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.
    7. Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.
    8. No third party beneficiaries. This Agreement between the Parties, confers no rights upon either Party’s employees, agents, contractors, partners of Customers, or upon any other person or entity.
    9. Independent Contractor. The Parties have the status of independent contractors, and nothing this Agreement nor the conduct of the Parties will be deemed to place the Parties in any other relationship. Except as provided in this Agreement, neither Party shall be responsible for the acts or omissions of the other Party or the other Party’s personnel.
    10. Statistical Information. Omnify may anonymously compile statistical information related to the performance of the Services for purposes of improving the Service (the “Usage Data”). Any Usage Data shared externally by Omnify shall not identify Customer as the source of such Usage Data, and such Usage Data shall, in addition to the foregoing restrictions, not utilize aggregate data in a manner that would enable Customer to be revealed as the attributed source. Omnify shall not use or aggregate personal data with Usage Data. Notwithstanding the usage rights authorized in this Section, any Customer Data included in Usage Data will be considered Customer Confidential Information. For the avoidance of doubt, as an agreed security measure, Customer hereby directs Omnify to anonymize/de-identify any Customer Data prior to such data becoming Usage Data.
    11. Governing Law. This Agreement shall be governed by the laws of Delaware, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Each Party hereto specifically waives the right to trial by jury litigate in court or arbitrate any claim or dispute as a class action, either as a member of a class or as a representative, with someone other than a member of the Customer group.
    12. Compliance with Laws. Each Party shall comply with all applicable local, state, national, and foreign laws in connection with its delivery or receipt of the Services, as applicable, including those laws related to data privacy, international communications, and the transmission of technical or personal data. 
    13. Dispute Resolution. If a dispute arises between the Parties relating to the interpretation or performance of this Agreement or the grounds for the termination hereof, the Parties agree to hold a meeting with fifteen (15) days of a written request by either Party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within fifteen (15) days after such a meeting, the Parties have no succeeded in resolving the dispute, either Party may protect its interest by any lawful means available to it.
    14. Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any breach of this Agreement may cause the other party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, the Parties agree that, in addition to any other remedy to which a party may be entitled hereunder, at law or equity, each party shall be entitled to seek an injunction to restrain such use in addition to other appropriate remedies available under applicable law.
    15. Notices. Unless specified otherwise herein, 
        
        1. All notices must be in writing and addressed to the attention of the other Party’s legal department and primary point of contact and 
        2. Notice will be deemed given:
           
           1. When verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt, or 
           2. When verified by automated receipt or electronic logs if sent by email. 

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