Subscription Terms
Subscription Terms
End User may purchase a Omnilogy Software Subscription and corresponding support services directly from Omnilogy or from one of our authorized Resellers. In each case, the Omnilogy Software is provided to End user on the terms and conditions set forth in this Subscription terms.
1. SUBSCRIPTION
During the term of this Subscription (“Subscription”) as set forth above, Omnilogy grants to End User a non-exclusive, revocable, non-transferable Subscription for Omnilogy Software specified in Product Subscription to install and limited to the Subscription scope for which End User has paid the applicable fees and any other limitations specified in the applicable invoice. Omnilogy shall issue to End User a Subscription key that authorizes and restricts use of the Omnilogy Software in accordance with the Subscription scope to (i) utilize the object code of the Omnilogy Software and documentation, solely for End User internal use for the Omnilogy Software’s intended and designed purposes as described in the documentation, solely through End User authorized users; and (ii) store the source code solely for the purpose of running the software in its object code form in End User internal environment and for no other purpose. This Subscription will terminate at the end of the Subscription term, and upon such termination, End User shall cease to use the Omnilogy Software and delete and destroy all copies of the Omnilogy Software. All rights not expressly granted to End User are reserved by Omnilogy.
2. OMNILOGY SOFTWARE USE
Each Omnilogy Software Subscription granted to End User hereunder grants End User the right, exercisable solely by and through authorized users, to: (a) Download, install, access and utilize the object code of the Omnilogy Software solely in accordance with the type and number of active and valid Omnilogy Software Subscriptions Subscriptiond to End User as set out in the Product Subscription (Exhibit A) or valid purchase Product Subscription (Exhibit A) the Reseller; (b) Create one copy of the object code of the Omnilogy Software solely for backup purposes, provided that End User shall not, and shall not allow any other party to, install or use any backup copy unless the Subscriptiond copy installed is inoperable and that End User uninstall and otherwise delete such copy that is inoperable.
Download or otherwise make one (1) copy of the documentation per Omnilogy Software Subscription and use such documentation, solely in support of End User Subscriptiond use of the Omnilogy Software in accordance with this Agreement. All copies of the Omnilogy Software and documentation made by End User: (i) will be the exclusive property of Omnilogy Software; (ii) will be subject to the terms of this Agreement; (iii) must include all trademark, copyright, patent and other Intellectual Property notices contained in the original; and (iv) must be securely stored in a place inaccessible to non-authorized users; and (c) Use and run the object code of the Omnilogy Software as properly installed and configured in accordance with this Agreement and the documentation, solely for End User internal use for the Omnilogy Software’s intended and designed purposes as described in the documentation.
The Omnilogy Software may contain technological copy protection or other security features designed to prevent use of the Omnilogy Software that is unauthorized or contrary to this Subscription terms. End User shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
3. CHARGES
The Charges for granting a Subscription shall be due and invoiced by Omnilogy on the terms set out in the Product Subscription (Exhibit A). End User hereby agrees to pay the Charges levied within date of Omnilogy’s invoice therefore. Omnilogy may impose a late payment charge maximum rate allowed by law. The Charges and any additional sums payable under this Agreement are exclusive of Value Added Tax which shall be paid by the End User at the rate and in the manner for the time being prescribed by law. End User shall pay all applicable taxes due under this Agreement. All prices are exclusive of all taxes, duties, withholdings and other governmental assessments. Unless otherwise agreed in writing by Omnilogy, shall be entitled to increase Subscription fees and/or support fees on an annual basis from the effective date during the relevant software Subscription.
4. RESTRICTIONS
End User shall not, directly or indirectly: (a) sub-subscription, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Omnilogy Software, (b) duplicate the Omnilogy Software, except as necessary for backup purposes, modify or create derivative works of the Omnilogy Software, (c) provide the Omnilogy Software on a timesharing, service bureau, service provider or other similar basis, (d) remove or alter any copyright, trademark or proprietary notice in the Omnilogy Software, (e) reverse engineer, decompile, or disassemble the Omnilogy Software or attempt in any manner to modify or override a Subscription key, (f) copy any features, functions or graphics of the Omnilogy Software for any purpose other than what is expressly authorized in this Agreement, (g) send or store spam, unlawful, infringing, obscene, or libelous material, or malicious code, (h) use the Software to offer data processing services to third parties or (i) improvement of Omnilogy Software errors will be made only by the Omnilogy, (j) End User shall implement technical or procedural methods to prevent use of the Omnilogy Software other than as explicitly authorized under this Agreement.
5. INTELLECTUAL PROPERTY
Intellectual Property Rights means Omnilogy Software patents, rights to inventions, copyrights, software, trademarks, trade names, service marks, logos, trade secrets, Confidential Information, compilations, diagrams, layouts, mask works, know-how, database rights, designs, methods, processes, formulas, rights to use and other proprietary rights and privileges, whether registered or unregistered, together with all improvements, modifications, enhancements, and derivative works to all of the foregoing, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world together with all applications for registration of any such rights and the right to apply for registration, and all renewals, revisions and extensions of such registrations.
Omnilogy is own exclusive the intellectual property rights and all copyrights to the Omnilogy Software. This Subscription does not convey or transfer any ownership rights in the Omnilogy Software, or any intellectual property rights therein. Omnilogy name, logo, trade names and trademarks are owned by Omnilogy, and no right is granted End User to use any of the foregoing except as expressly permitted herein. Omnilogy reserve all rights, title, and interest in and to all copies of the Omnilogy Software.
To enable Omnilogy to maintain the confidential nature of the Omnilogy Software to the maximum extent allowed by law, Subscriptione shall not subSubscription, distribute, modify or create derivative works of, reverse assemble, or otherwise reverse engineer the Omnilogy Software.
End User shall do all such acts and things as Omnilogy may reasonably require for the purpose of preserving or perfecting Omnilogy’s title and intellectual property rights.
6. RESPONSIBILITY FOR USE OF SOFTWARE
End User are responsible for all uses of the Omnilogy Software and documentation End User Subscription pursuant to this Agreement, including any unauthorized uses due to loss, theft, unauthorized access, use and/or distribution of the Omnilogy Software and documentation. In addition, End User shall ensure that access and/or use of the Omnilogy Software by authorized users who are agents, contractors, sub-contractors and/or representatives (including Reseller) is limited to accessing and using the Omnilogy Software within the limited Subscription and use rights granted to End User under this Subscription terms. End User shall ensure that End User have a valid legally binding agreement in place with such authorized users requiring such authorized users to comply with terms equivalent, to those in this Agreement protecting Omnilogy Software. Furthermore, End User are solely and exclusively responsible for any and all costs and expenses associated with the purchase, licensing, or use of any Omnilogy Software or any other third party products or services and, in deploying, testing, running, or utilizing the Omnilogy Software, End User are solely and exclusively responsible for any impact that the Omnilogy Software may have on the costs or any other third party products or services payable by End User.
7. UPDATES
Omnilogy may (either directly or indirectly through its Resellers) provide periodic updates, upgrades, new releases, adaptations, bug fixes, patches, workarounds and other error corrections. Omnilogy may develop and provide updates in its sole discretion, and End User agree that Omnilogy has no obligation to develop any updates at all or for particular issues, and Omnilogy expressly disclaims any liability for not doing so. End User further agree that all updates will be deemed Omnilogy Software, and related documentation will be deemed documentation, all subject to the terms and conditions of this Agreement. End User is obliged to install all updates. Refusal to install updates may result in loss of usability of the software, to which the End User agrees.
8. AUDIT
End User shall maintain accurate records necessary to verify use within the Subscription scope. Upon Omnilogy’s or its third-party appointee’s written request, End User shall provide Omnilogy or its third-party appointee with such records within fourteen (14) days.
If as a result of an audit Omnilogy determines that: (i) End User are in breach of any term under this Agreement, End User shall, if such breach can be cured, cure or, procure its cure, within thirty (30) calendar days of receiving Omnilogy written notification requiring it be cured; (ii) End User use of the Omnilogy Software is in excess of End User rights under this Agreement, End User agree to pay, within thirty (30) days of written notification, the retroactive Subscription fees for such excess use; (iii) If End User do not pay the Subscription fees due or cure the breach, or where the breach is incapable of cure, Omnilogy may immediately on notice and without liability to End User, terminate this Agreement.
9. TERMINATION
This Agreement and the Subscription granted hereunder shall remain in effect for the Subscription term. This Subscription will terminate if End User commits a material breach of this Subscription that is not cured within thirty (30) days of receipt of written notice from Omnilogy or in the event that the other party makes an assignment, composition or arrangement for the benefit of creditors, if a receiver or administrative receiver is appointed over the whole of any part of its assets or undertakings or if an order is made or an effective resolution passed for the winding up.
Any provision of the Subscription that contemplates performance or observance subsequent to termination or expiration of the Subscription shall survive termination or expiration of this Subscription and continue in full force and effect.
End User may terminate this Agreement by ceasing to use and destroying all copies of the Omnilogy Software and documentation. Upon expiration or earlier termination of this Agreement, the Subscription granted hereunder shall terminate, End User shall pay all Subscription fees and support fees due and cease using and destroy all copies of the Omnilogy Software and any documentation. Omnilogy shall have the right to immediately disable the Omnilogy Software and cease the provision of all support services.
10. DISCLAIMER OF WARRANTIES
Omnilogy warrants and represents that it has the authority to grant the Subscription described in this Agreement and at all times during the term of the Agreement, Omnilogy will not knowingly introduce malicious code or other defects into the Omnilogy Software. The Omnilogy Software will operate substantially in accordance with the specifications set forth in the manuals and documentations.
Omnilogy expressly disclaims any and all warranties of any kind or nature to the fullest extent permitted by law, whether express, implied, statutory or otherwise, including without limitation any warranties of title, noninfringement, merchantability, accuracy of informational content, satisfactory quality, fitness for a particular purpose or quiet enjoyment, together with any warranties arising out of any course of dealing, usage or trade practice.
Omnilogy makes no representation or warranty that the software, the documentation, the support services or any other products or services provided will meet End User requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption or in a timely manner, meet any performance or reliability standards, be free from malicious code, be error free or that any errors or defects can or will be corrected.
11. LIMITATION ON ALL DAMAGES
In no event Omnilogy’s liability arising out of or related to this Subscription terms. whether in contract, tort or under any other theory of liability, exceed in the aggregate value of this Subscription. In no event shall Omnilogy be liable for any use, interruption, inability to use the software, lost revenues or profits, delays, interruption or loss of services, loss of business or goodwill, failure to update or provide correct information, system incompatibility or provision of incorrect compatibility information or for any consequential, incidental, indirect, exemplary, special or punitive damages, whether arising out of or in connection with this Subscription terms, breach of contract, tort (including negligence), strict liability, breach of statutory duty or otherwise, regardless of whether such damages were foreseeable and whether or not Omnilogy was advised of the possibility of such damages.. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
12. ASSIGNMENT
End User may not assign, nor transfer in any way, including by merger or corporate restructure, any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Omnilogy. Any attempted assignment or transfer in breach of this section shall be void. Omnilogy may assign its rights under this Agreement. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
13. CONFIDENTIALITY
Each party hereto agrees that it will keep secret and will not without the prior written consent of the other, peruse or disclose to any third party any confidential information including Omnilogy Software, trade secrets or otherwise relating to the business or affairs of the other including this Agreement.
14. DATA PROTECTIONS
Where End User purchase a Omnilogy Software Subscription and support services from Omnilogy directly the Parties will process personal data in accordance with applicable privacy and data protection laws and regulations. End User agree that Omnilogy may engage its affiliates as another processor and subcontractor when contributing to the services. Within the scope of application of the GDPR (General Data Protection Regulation (EU) the following applies: to the extent that the use or implementation of Omnilogy services involves the processing of personal data by Omnilogy on behalf of and under End User instructions, the Parties agree that this Agreement shall incorporate the Omnilogy framework data processing agreement DPA.
15. FORCE MAJURE
Delay or failure to comply with or breach of any of the terms and conditions of this Agreement if occasioned by or resulting from an act of public enemy, fire, explosion, earthquake, flood, war, revolution, riot, strikes, blockade, embargo, sanctions, epidemics, act of any Government or other Authority, compliance with Government orders, demands or regulations, or any circumstances of like or different nature beyond the reasonable control of the Party so failing, will not be deemed to be a breach of this Agreement nor will it subject either Party to any liability to the other.(force majeure).
Should either Party be prevented from carrying out its contractual obligations as a result of a force majeure event lasting continuously for a period of 30 (thirty) days, either Party shall be entitled, after due consultation with the other Party in an effort to come to a mutually acceptable arrangement, to terminate the Agreement on written notice to the other Party, without liability.
16. EXPORT CONTROLS
End User may not use or export or re-export any product or service offered on the Site, or any Omnilogy software or technical data, in violation of any applicable laws or regulations, including without limitation United States and EU export laws and regulations. In particular, End User agree not to export, re-export or provide software or technical data: (i) to a national or resident of: Cuba, Iran, N. Korea, Sudan, Syria, the Crimea Region of the Ukraine, or to any other country embargoed or restricted by the U.S., (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or the U.S. Department of Treasury’s Specially Designated Nationals Lists, or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any agency of the U.S. Government.
The above lists are subject to change, and End User must comply with the proscribed lists as they exist.
17. OTHER
The obligations of Omnilogy under this Agreement, are subject to and conditioned upon the timely performance of the End User obligations under this Agreement.
If any provision of this Subscription is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
This Subscription will be governed by and construed in accordance with the laws of Austria. All disputes or claims arising out of or in connection with this contract, including disputes relating to its validity, breach, termination or nullity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber by one or three arbitrators appointed in accordance with the said Rules.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Both Parties acknowledge and agree a breach of this Agreement would cause the other Party irreparable harm for which money damages alone may not be an adequate remedy. In addition to damages and any other remedies to which one Party may be entitled, both Parties acknowledge and agree that each Party may seek injunctive relief, for specific performance or other appropriate order to prevent the actual, threatened or continued breach of this Agreement.
18. ENTIRE AGREE
Having read the entire Subscription terms, the parties agree to be bound and abide by its terms and conditions. This Subscription terms constitutes the complete and exclusive statement of the understanding between the parties, and supersedes all prior or concurrent proposals and other communications between the parties relating to the Omnilogy Software, whether oral or written, as well as the terms and conditions of any prior, concurrent or subsequent purchase order(s) provided by End User.
This Subscription terms shall supersede all terms of any unsigned or clickwrap Subscription included in any package, media or electronic version of the Omnilogy Software and any such Omnilogy Software shall be Subscriptiond under the terms of this Subscription terms.
This Subscription terms is effective upon execution by an authorized representative of End User and acceptance by an authorized representative of Omnilogy, and may only be altered or modified by a written Subscription terms signed by an authorized representative of each party. In the event of a conflict in terms between this Subscription terms and a Product Subscription, the terms of the most recent Product Subscription for the Omnilogy Software shall control.