Last Updated: 27-Sep-2018
These OmniSci Cloud Terms of Services (this “Agreement”) constitute a legal agreement between you and, as applicable, the company or legal entity you represent (collectively, “you,” “your” and “yours”), on the one hand, and OmniSci, Inc. (“OmniSci”), on the other hand, for the use of the OmniSci Cloud Service (the “Service”). By Using (as defined below) the Service, you (a) acknowledge that you have read, understand and agree to the terms of this Agreement, and (b) represent that you have the legal authority to enter into this Agreement on your own behalf or, as applicable, on behalf of the legal entity you represent.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT USE THE SERVICE.
1.1 "Documentation" means any user manuals or any other documentation relating to the Service that OmniSci provides or makes available to you.
1.2 "Order" means an order form or online order with OmniSci pursuant to which you obtain access to the Service.
1.3 “Use” or “Using” means to run, execute, access, or activate the processing capabilities of the Service and display the results thereof.
2.1 General. Subject to your compliance with the terms and conditions of this Agreement, OmniSci hereby grants you a limited, non-exclusive, non-transferable, non-sublicenseable license during the subscription term set forth on your Order (the “Subscription Term”), solely for your internal business purposes, to (a) Use the Service, by accessing it through computing resources owned or controlled by you, and (b) use the Documentation as reasonably necessary in connection with your Use the Service. The Service will be made available only through electronic means over the Internet unless otherwise specified on the Order. OmniSci will use commercially reasonable efforts to make the Service available 24 hours per day, 7 days per week, except for: (a) planned downtime, and (b) any unavailability caused by circumstances beyond OmniSci’s reasonable control.
2.2 Account and Credentials. To use the Service, you must set up an account (your “Account”). You are responsible for safeguarding your Account’s login credentials, and you are responsible for all activities in your Account. You must notify OmniSci immediately if you suspect any improper use of or access to your Account. All notifications regarding the Service will be sent to the email address associated with your Account. Only one user and set of credentials is permitted per Account.
2.3 Your Data. After you create an Account, the Service may permit you to upload, download, and access content and materials which you have a legal right to copy, publish, share, store or otherwise use (collectively, “Data”). The Services may permit you to share your Data with other users of the Service or the public.
2.4 Trial Service. OmniSci may, in its discretion, provide access to “pre-release” or “trial” “evaluation” or “eval” Service (collectively, “Trial Service”). Unless otherwise specified in the applicable Order (a) all Service is Trial Service, (b) you may only use Trial Service on a non-production basis for no more than 30 days, and (c) OmniSci may terminate your license to use such Trial Service at any time upon written notice. In addition, the following Sections of this Agreement do not apply to Trial Service: 3.1 (Support Services).
2.6 No High-Risk Activities. The Service is not designed or intended for use in medical, nuclear, aviation, navigation, military or other high-risk activities where failure of the Service could result in death, personal injury and/or substantial property damage. You may not use the Service any such purposes, and OmniSci and its licensors expressly disclaim and are released from any responsibility or liability for damages that may be incurred due to the use of the Service in such applications.
3.1 Support Services. During the Subscription Term, OmniSci will provide you with support for the Service by telephone and email (“Support”). Support will include answering technical questions and assisting with the basic operation of the Service. You will also have access to OmniSci’s Community Forum where other users of the Service and OmniSci products may offer tips, best practices, troubleshooting and informal training. Support does not have a guaranteed initial or ongoing response time, but OmniSci aims to respond to every Support issue within 3 business days, Monday through Friday, not counting US holidays. In addition, OmniSci will take steps to keep the OmniSci Cloud Service generally accessible and functioning throughout the Subscription Term.
4.1 Your Data. In connection with your use of the Service, you may use or upload Data from the Service. You are entirely responsible for the content, accuracy and completeness of such Data, and any liabilities or damages resulting from the Data, regardless of whether the Data consists of, including but not limited to, text, graphics, audio, video, or computer software. By making Data available to the Service, you represent and warrant that: (a) you own or have the necessary licenses to provide the Data to the Service, and the provision of the Data to, and use of the Data by, the Service as contemplated herein will not, infringe the intellectual property rights, including but not limited to copyright, patent, trademark or trade secret rights, of any third party, (b) the Data does not contain any viruses, worms, malware, Trojan horses or other harmful or destructive code; (c) the Data is not is not machine or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing), and (d) you have, in the case of Data that includes computer code, accurately categorized or described the type, nature, uses and effects of the Data, whether requested to do so by OmniSci or otherwise.
4.2 Confidentiality of Your Data. OmniSci maintains administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data, as may be further described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of your Data by OmniSci except (a) to provide the Service and prevent or address system or technical problems, (b) as compelled by law, or (c) as you expressly permit in writing.
4.3 Personal Data. To the extent you communicate any Data relating to an identified or identifiable individual (“Personal Data”) to OmniSci, or OmniSci obtains any Personal Data from you, OmniSci agrees that it (and its contractors) will not collect, access, use, store, disclose, transfer or otherwise process (collectively, “Process” or “Processing”) any such Personal Data except (a) for the purposes of this Agreement, including without limitation, to implement and deliver the Service and its features and associated services, provide customer support and help you prevent or address service or technical problems, (b) as expressly permitted by you in this Agreement or otherwise, or (c) as compelled by law. You must make such disclosures, obtain such consents, provide such choices, implement such safeguards in compliance with, and otherwise comply with any applicable law, rule or regulation regarding the Processing of Personal Data of any individual whose Personal Data your employees, contractors or other agents Process (including, without limitation, by disclosing the Personal Data to OmniSci) in connection with your use of or access to the Service.
4.4 Acceptable Use. OmniSci may set out limits for use of the Service in an Order. In all cases, your use of the service may not interfere with any other user, site, account, system, network, or capacity constraint. OmniSci may, immediately and without notice to you, throttle or suspend your Service, cancel your subscription, disable your Account and cease providing the Service to you, if you: (a) harm, disrupt, or otherwise engage in activity that diminishes OmniSci’s brand, Service, computer systems, hardware, or network, (b) misrepresent your identity, impersonate any person or attempt to gain access to or illegally track any account, computers, or networks related to the Service, without authorization, (c) manipulate the Service in any manner not specified by OmniSci, including but not limited to using interfaces not supported by OmniSci or programmatically preventing the Service from going idle (d) interfere with OmniSci’s policy with respect to appropriate use of the Services, as determined by OmniSci, (e) store, back up, or distribute any illegal or unauthorized files or data, or material protected by intellectual property rights of a third party, unless you own or have appropriate rights to such material, (f) store, back up, or distribute material that contains viruses, Trojan horses, worms, corrupted files, or any material that may damage the operation of the Service or another person’s device, hardware, data, or property, (g) engage in conduct that would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation, (h) directly or indirectly reverse engineer, decompile, disassemble, modify, reproduce or create derivative works of the Services, (i) merge the Services with other products, software or services, (j) alter or modify any disabling mechanism, (k) willfully render any part of the Services unusable, (l) assign, rent, loan, or otherwise transfer the Services, (m) remove or alter any proprietary notices (e.g., copyright, trademark notices, legends, etc.) received in the provision of the Services, or (n) breach any material provision of this Agreement.
5.1 Fees. You will pay to OmniSci all fees for the Service as set forth on the applicable Order (“Fees”) and in accordance with the payment terms set forth therein. If the Order does not specify otherwise, all Fees are payable monthly, in advance, before the beginning of each Service month. All amounts not paid when due will accrue interest until paid at the lesser of 1.5% per month or the maximum rate allowed by applicable law, and you will reimburse OmniSci for all costs incurred by OmniSci (included reasonable attorneys’ fees) in collecting past-due amounts. OmniSci may increase the Fees for the Service any time upon no less than 30 days’ notice to you. Except as expressly set forth in this Agreement, all Fees are non-cancelable and non-refundable.
5.2 Taxes. The Fees and any other charges described in this Agreement do not include federal, state or local sales, VAT, GST, foreign withholding, use, property, excise, service or similar taxes (“Taxes”). You will pay all such Taxes as required by applicable law and as charged by OmniSci.
5.3 Audit. OmniSci will have the right to review your use of the Service for purposes of determining your compliance with this Agreement. You agree to provide reasonable assistance and access to information in the course of any such audit. Any such audit will be at OmniSci’s expense provided that, if an audit reveals that you have exceeded the purchased scope or usage of the Service or have otherwise breached this Agreement, in addition to acquiring additional usage rights or otherwise curing such breach, you will reimburse OmniSci for the reasonable cost of the audit. OmniSci will also have the right to share the results of any such audit with our licensors.
6.1 As used herein, “Confidential Information” means all nonpublic information disclosed by OmniSci, its affiliates and licensors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. Confidential Information includes (a) nonpublic information relating to ideas, features, functions, organization, structure, graphics, or user interfaces of the Service, and (b) performance benchmarks and other test results of the Service. Confidential Information does not include any information that you can document (i) is or becomes publicly available without breach of this Agreement, (ii) was known to you at the time of your receipt from OmniSci, (iii) is received from a third party that is not subject to an obligation of confidentiality or whose disclosure of such information is not in violation of applicable law, or (iv) is independently developed by you without reference to Confidential Information. You may use Confidential Information only in connection with your use of the Service and Documentation as permitted under this Agreement. You will take all reasonable measures to protect Confidential Information from unauthorized disclosure, dissemination or use using the same degree of care you use to protect your own confidential information of a similar nature, but in no event less than a reasonable degree of care.
7.1 Ownership. The Service and Documentation are licensed, not sold. You acknowledge that (a) all right, title and interest in all copies of the Service and Documentation, and all intellectual and proprietary rights therein, are and will remain with OmniSci or its third-party licensors, (b) no right or interest in the Service or Documentation is conveyed other than the limited license granted by this Agreement, (c) the Service and Documentation are protected by the copyright laws of the United States and by international treaties, and (d) the Service and Documentation embody valuable proprietary information of OmniSci.
7.2 Right to Use Data. By submitting Data to OmniSci, you hereby grant OmniSci a worldwide, royalty-free, and non-exclusive limited right to host, reproduce, modify, adapt and use the Data as reasonably required for OmniSci to provide you with the Service, including by ensuring proper operation of the Service and associated systems in accordance with this Agreement. Also, OmniSci may aggregate anonymized statistics about Data and use those statistics (but not the underlying Data) for business purposes consistent with this Agreement.
7.3 Disclosure of Data. OmniSci may disclose your Data to the extent compelled by law to do so, provided OmniSci gives you prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at your cost, if you wish to contest the disclosure. Of course, OmniSci has no obligation to safeguard your Data to the extent that you voluntarily expose such Data to other users of the Service or to the general public.
7.4 Feedback. To the extent you provide OmniSci with any suggestions, comments, ideas, corrections, improvements, feedback or other information about the Service in either verbal or written form (collectively, “Feedback”), you hereby grant OmniSci a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicenseable, royalty free, fully paid-up right and license to access, use, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative works from such Feedback in connection with any product or service or for any other purpose, without any obligations to you or restrictions of any kind.
8.1 Term. This Agreement will commence as of the effective date of the applicable Order, and subject to earlier termination under this Section 7, will continue in effect until terminated by either party.
8.2 Termination. Either party may terminate this Agreement upon written notice to the other party, in the event that the other party (a) breaches any material terms or obligations under this Agreement and fails to cure such breach within 30 days after notice thereof, or (b) dissolves, is declared insolvent or bankrupt, makes an assignment for the benefit of creditors, has a receiver appointed, or is the subject of any proceeding under any bankruptcy or insolvency laws, which proceeding, if initiated against such party, is not dismissed within 30 days. This Agreement will automatically terminate in the event that you violate Sections 2.1, 2.6, or 6. You may terminate this Agreement and your Use of the Service at any time for convenience upon notice to OmniSci, though you will not be entitled to a refund of any pre-paid Fees or relieved of any obligation to pay Fees as set out in the Order. OmniSci may terminate this Agreement for convenience upon no less than 30 days’ written notice to you.
8.3 Effect of Termination. Upon any termination of this Agreement, subject to the provisions of Section 8.4, you will immediately cease all Use of the Service and Documentation. OmniSci may suspend your access to the Service at any time for non-payment of Fees or other material violation of this Agreement.
8.4 Data Portability and Deletion. Upon request by you made within 30 days after the effective date of termination or expiration of this Agreement, OmniSci will make your Data available to you for export or download. (Additional charges may apply.) After such 30-day period, OmniSci will have no obligation to maintain or provide any of your Data and will thereafter, unless legally prohibited, delete or destroy all copies of your Data in OmniSci’s systems or otherwise in OmniSci’s possession or control.
8.5 Survival. The following sections will survive any termination of this Agreement: 2, 4.5, 5 (solely with respect to any Fees and Taxes that remain outstanding as of the effective date of termination), 6, 7, 8, 9.2, 9.3, 10, and 11.
9.1 Warranty. THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. OmniSci AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER OmniSci NOR ITS SUPPLIERS AND LICENSORS MAKES ANY WARRANTY THAT THE SERVICE WILL BE ERROR FREE, TIMELY, MEET YOUR SPECIFIC REQUIREMENTS OR THAT ACCESS THERETO WILL BE CONTINUOUS OR UNINTERRUPTED.
9.2 Disclaimer. You understand and agree that your use of the Service is entirely at your own risk. In the event of failure, OmniSci will not refund or credit any Fees for any reason. Furthermore, while OmniSci reserves the right, it has no obligation to monitor all the content, data or information posted in connection with the Service by third parties, and therefore is not responsible for any such content, data or information. OmniSci does not represent or imply that it endorses any such content, data or information, or that it believes such content, data or information to be accurate, useful or non-harmful. You are responsible for taking precautions necessary to protect yourself, and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive materials. OmniSci disclaims any responsibility for any harm resulting from your use of the Service.
9.3 NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL OmniSci OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF PROFITS, GOODWILL, USE OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If you believe that your work has been copied in a way that constitutes copyright infringement, please submit your complaint in writing, providing this information:
OmniSci’s Copyright Agent for notice of claims of copyright infringement on its site can be reached as indicated below (see Notices – Section 11.10, below).
11.1 Assignment. You may not delegate any of your obligations under this Agreement or assign or transfer this Agreement or any of your rights hereunder, whether by operation of law or otherwise, without the prior written consent of OmniSci. A change of control involving you will constitute an assignment for purposes of the foregoing restriction. Any delegation, assignment or transfer of this Agreement in violation of this Section 11.1 will be void and of no force and effect and a material breach of this Agreement. OmniSci may freely assign or transfer this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
11.2 Compliance with Laws. You will comply with all applicable laws and regulations relating to your Use of the Service, including without limitation, those relating to export and import, privacy and personal data protection.
11.3 Entire Agreement. This Agreement and any applicable Orders set forth the complete understanding between you and OmniSci with respect to the subject matter hereof and supersedes all prior understandings and communications relating thereto. No term or condition of a purchase order or other document you submit to OmniSci which is different from, inconsistent with, or in addition to the terms and conditions set forth herein will be binding upon OmniSci. To the extent that this document may constitute an acceptance, this acceptance is expressly conditioned on your assent to the terms and conditions set forth herein. Notwithstanding the foregoing, if you have entered into a separate written agreement with OmniSci for Use of the Service or the receipt of Services, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement.
11.4 Export Control; US-Only Use. You may not Use or otherwise export or reexport the Service except as authorized by United States law and the laws of the jurisdiction in which the Service was obtained. In particular, but without limitation, the Service may not be exported or reexported (a) into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By Using the Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not Use the Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. The Service is designed for use only within the United States; OmniSci may restrict access to the Service from other locations.
11.5 Force Majeure. Neither party will be responsible for any failure to perform its obligations under this Agreement (other than obligations to pay money) caused by an event beyond its reasonable control, including but not limited to, wars, riots, labor strikes, natural disasters, the infrastructure of the Internet, or any law, regulation, ordinance or other act or order of any court, government or governmental agency.
11.6 Governing Law; Disputes. This Agreement will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any dispute or claim arising out of or relating to this Agreement, except for those relating to a breach of confidentiality by you, the infringement of OmniSci’s intellectual property rights or the access or Use of the Service in violation of this Agreement (a “Claim”), must be resolved exclusively by courts of competent jurisdiction in San Francisco, California, and both you and OmniSci agree to accept and submit to the personal jurisdiction of such courts, and you and OmniSci each waive any right to a jury trial. In no event will any Claim, or any other action or proceeding by you be instituted more than 1 year after the cause of action arose.
11.7 Government End Users. The Service and Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Service” and “Commercial Computer Service Documentation”, as such terms are used in 48 C.F.R. 12.tw2 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Service and Commercial Computer Service Documentation are being licensed to U.S. Government end users and U.S. Government contractors (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
11.8 Modification; Waiver. This Agreement may not be modified or amended except pursuant to a written instrument signed by both parties. The waiver by either party of a breach of any provision hereof will not be construed as a waiver of any succeeding breach of the same or any other provision, nor will any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.
11.9 Publicity. OmniSci may include your name and logo on its customer lists and reference the fact that you are a customer of OmniSci. However, neither party may issue a press release regarding this Agreement without the other party’s prior written approval.
11.10 Notices. Notices in connection with this Agreement must be in writing and either delivered in person or by recognized commercial courier or certified mail, postage and fees prepaid, return receipt requested, and addressed (a) if to OmniSci, to OmniSci, Inc., 1 Front Street, Suite 2650, San Francisco, CA, 94111 USA, Attention: Legal Department, and (b) if to you, to the address set forth on the applicable Order, or to such other address as you have specified by notice hereunder. Notices will be deemed effective when received or, if delivery is refused, when delivery is attempted.
11.12 Relationship of Parties. OmniSci and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
11.13 Severability. In the event that any provision of this Agreement is for any reason held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision will be deemed null and void and severed from this Agreement, and the remainder hereof will remain in full force and effect.