Omnivore.io

Terms of Service - Omnivore Software

Last Modified: August 11, 2020

These Terms of Service (this "Agreement") constitute a binding agreement by and between the party accepting this Agreement (the "Customer") and Omnivore Technologies, Inc. ("Omnivore") regarding the use of Omnivore’s proprietary software and services, including its application program interface ("Omnivore API") and Menu Management System ("MMS"), all of which is defined as "Omnivore Software." The parties will also enter into a separate agreement that governs the amount the Customer will pay for the Omnivore Software (an "Order Form") and this Agreement is incorporated by reference into any such Order Form. If any of the terms of the Order Form differ from a term in this Agreement, the terms in the Order Form will control.

IT IS UNDERSTOOD BETWEEN THE PARTIES THAT THE INDIVIDUAL ACCEPTING OR SIGNING THIS AGREEMENT HAS THE AUTHORITY TO BIND THE CUSTOMER TO THE TERMS OF THIS AGREEMENT.

  1. Limited Purpose License Grant.

    Subject to the Customer’s compliance with the terms and conditions of this Agreement and any Order Form, Omnivore hereby grants to the Customer a nonexclusive, revocable, worldwide, non-assignable, non-transferable, and non-sublicensable right and license, during the Term (as defined in Section 7 or on an Order Form), to access or install, run and use the Omnivore Software that may be provided by Omnivore to the Customer, and/or a service provider of the Customer.

  2. License Restrictions.

    The Customer will not use the Omnivore Software for any purpose other than the purposes expressly set forth herein without Omnivore’s prior written consent. Except as expressly set forth herein, the Customer may not: (i) copy, rent, lease, sell, transfer, assign, disassemble, reverse engineer or decompile (except to the limited extent such restrictions are expressly prohibited by applicable statutory law), modify or alter any part of the Omnivore Software; (ii) use the Omnivore Software on behalf of any unauthorized third party; or (iii) use the Omnivore Software in order to build a competitive product.

  3. Ownership and Reservation of Rights.

    1. Rights in Omnivore Software.

      The Customer acknowledges and agrees that, as between the parties, Omnivore retains all right, title and interest in and to the Omnivore Software, including any copies thereof, by whomever produced, and all intellectual property rights therein and thereto. Omnivore grants no rights, and reserves any and all rights other than the rights expressly granted to the Customer under this Agreement, with respect to the Omnivore Software. The Customer will acquire no right, title, or interest in and to the Omnivore Software or any copies thereof (by whomever produced) other than the limited licensed rights expressly granted under this Agreement. The Customer will not remove, obscure, or alter any intellectual property rights or notices relating to the Omnivore Software.

    2. Rights in Customer Data.

      As between Omnivore and Customer, Customer owns the Customer Data. Customer hereby grants and agrees to grant to Omnivore a limited-term, worldwide, non-exclusive, non-transferable, non- sublicensable, royalty-free license to host, copy, transmit, display, process and use for any business purpose the Customer Data for the sole and exclusive purpose of providing the Services to Customer and as required by Omnivore to comply with its obligations under this Agreement (except that Omnivore may not use Customer Personal Data). "Customer Data" will mean all data and other information that Customer provides or makes available to Omnivore in connection with this Agreement. "Customer Personal Data" will mean all Customer Data relating to an identified or identifiable natural person.

  4. Customer’s Consent to Use.

    1. Application or Service Provider.

      If the Customer provides an application or service (the "Service"), the Customer agrees that Omnivore may: (i) process Customer Data from the Service via the Omnivore Software; and (ii) contact any merchant operator that is connected to the Service via the Omnivore Software to seek permission to use the merchant operator’s data that is processed through the Omnivore Software. The Customer may not set-up an account with Omnivore for any of its customers nor accept these terms of service (the "TOS") for or on behalf of its customers and will direct its customers to Omnivore’s website to set-up an account and to accept the TOS.

    2. Merchant Operators; Aggregated Data.

      If the Customer is a merchant operator, the Customer agrees that Omnivore may: (i) process the merchant operator’s Customer Data via the Omnivore Software; and (ii) collect the merchant operator’s transaction and configuration data (which will not include any Customer Personal Data, or sensitive credit card information, of the merchant operator’s customers or employees) that is processed via the Omnivore Software. Omnivore may sell or license Customer Data to a third party, provided that such party uses it on an anonymized and aggregated basis.

  5. Feedback.

    The Customer may, from time to time, provide suggestions, comments for enhancements or functionality or other feedback ("Feedback") to Omnivore with respect to the Omnivore Software. If the Customer provides any Feedback Omnivore will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. The Customer hereby grants to Omnivore a royalty free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to: (i) copy, distribute, transmit, display, reproduce, license, and create derivative works of the Feedback; and (ii) use the Feedback and/or any subject matter thereof, including without limitation, the right to commercialize, develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

  6. Payment Terms.

    1. Credit Card.

      If the Customer is paying by credit card, Omnivore will have the right to charge the credit card on the day the invoice is created by Omnivore.

    2. ACH or Check.

      If the Customer is paying via ACH or physical check, all fees are due net thirty (30) days from the email date of the invoice.

    3. Accurate Information.

      The Customer is responsible for providing complete and accurate billing and contact information (including the email address for invoicing purposes) to Omnivore and notifying Omnivore of any changes to such information. Any delay in payment by the Customer due to Omnivore having inaccurate billing information will be subject to the terms of Section 6.4.

    4. Invoice Dispute.

      The Customer must notify Omnivore’s billing department within three (3) business days of receipt of an invoice that it disputes amounts stated on an invoice (the "Dispute Notice Period"). If the Customer fails to notify Omnivore before the end of the Dispute Notice Period, then the invoice is considered to be accepted. The parties agree to negotiate in good faith the resolution of any dispute within thirty (30) days of the date of the disputed invoice. If the parties are unable to agree, then Omnivore has the right to suspend the Customer’s access to the Omnivore Software until the dispute is resolved, or terminate this Agreement and any Order Form.

    5. Late Payment.

      Unless specified otherwise in an Order Form, Customer will pay all undisputed invoices within thirty (30) days of invoice date. If any undisputed amounts invoiced hereunder are not received by Omnivore by the due date, then at Omnivore’s discretion, all unpaid fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any past due payment has not been received by Omnivore within thirty (30) days from the time such payment is due, Omnivore may suspend access to the Omnivore Software without notice to the Customer until such payment is made, or, at its discretion, immediately terminate this Agreement and any Order Form for cause. If access to the Omnivore Software is suspended due to the terms of the preceding sentences, and the Customer wishes to reinstate access, then the Customer must pay to Omnivore all amounts owed PLUS a reinstatement fee equal to one (1) month of the support fees set forth in the Order Form that was in effect at the time of suspension.

    6. Non-Cancelable and Non-refundable.

      Payment obligations are non-cancelable and all fees paid are non-refundable; provided however, that if the Customer terminates this Agreement or any Order Form because Omnivore no longer can make the Omnivore Software available to the Customer, then Omnivore will refund to the Customer a pro-rata amount of any pre-paid fees.

    7. Net of Taxes.

      All amounts payable by the Customer to Omnivore hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively "Taxes"). The Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Omnivore.

  7. Term and Termination.

    1. Term.

      If there is no Order Form, or there is no "Term" defined in an Order Form, then the Term of this Agreement, and all pricing related to the provision of the Omnivore Software and any related support, will be twelve (12) months from the day that this Agreement has been accepted or executed.

    2. Termination for material breach.

      Either party may terminate this Agreement if the other party fails to cure any material breach within thirty (30) days after receipt of written notice of such breach.

    3. Suspension for Ongoing Harm.

      Omnivore reserves the right to suspend delivery of the service if Omnivore reasonably concludes that Customer is causing immediate and ongoing harm to Omnivore or the security, integrity, or availability of the Omnivore Software. Omnivore will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension. In the extraordinary case that Omnivore must suspend delivery of the Omnivore Software, Omnivore promptly notify Customer of the suspension and the parties will diligently attempt to resolve the issue. Omnivore will not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the service in accordance with this Section 7.3. Nothing in this Section 7.3 will limit Omnivore’s other rights under this Agreement.

    4. Effect of Termination.

      In the event that this Agreement is terminated for any reason, all license rights with respect to the Omnivore Software will immediately terminate, and the Customer will: (i) cease use of the Omnivore Software; (ii) return to Omnivore all copies or other embodiments of any of Omnivore’s Confidential information (defined in Section 8) received or obtained by the Customer under this Agreement; and (iii) pay to Omnivore all amounts due and owing under this Agreement or any Order Form. If the Customer has given Omnivore the permission to use its logo and/or trademarks, then such right will terminate when this Agreement is terminated. Customer will cease referencing Omnivore in any public communications if Omnivore has granted Customer a right to do the same. Omnivore will delete and discard of Customer Data (except for Aggregated Data) within thirty (30) days of termination or expiration of this Agreement.

    5. Survival.

      Upon termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 4 (Customer’s Consent to Use), 5 (Feedback), 6.5 (Late Payment), 6.6 (Non-Cancelable and Non-refundable), 6.7 (Net of Taxes), 7.5 (Survival), 8 (Confidentiality), 10 (No Warranty), 11 (Limitation of Liability); 12 (Indemnification), and 13 (General) will survive.

  8. Confidentiality.

    1. Existing NDA.

      If the parties have executed a non-disclosure agreement, then the terms of that agreement will control the confidentiality obligations of the parties.

    2. No Existing NDA.

      1. Each party acknowledges that the existence of this Agreement and any Order Form, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that the other party has received or will receive in connection with this Agreement and non-public information designated by the disclosing party as "confidential’ or "proprietary" prior to or at the time of disclosure or that a reasonable person would understand to be confidential or proprietary given the nature of the information and the circumstances of the disclosure, are considered private and confidential (the "Confidential Information"). Confidential Information does not include information that (i) is or becomes generally known to the public through no fault of any person or entity under an obligation of non-disclosure with respect to such information; (ii) is in the receiving party’s possession prior to receipt from the disclosing party; or (iii) is acquired by the receiving party from a third party without breach of any confidentiality obligation.

      2. Each party will use reasonable diligence and in no event less than reasonable care to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity. Receiving party will only disclose Confidential Information to the receiving party’s personnel who have a need to know such Confidential Information in order for such person to perform duties related to this Agreement and any Order Form, and agree to keep such Confidential Information confidential. Each party may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder and is prohibited from disclosing or otherwise making the Confidential Information available to other persons in violation of this Agreement.

      3. The obligations of non-disclosure and non-use will continue through the Term and for three (3) years thereafter.

      4. The receiving party acknowledges and agrees that: (i) the Confidential Information of the disclosing party has commercial value and is not in the public domain, (ii) unauthorized use or disclosure of same is likely to cause injury not readily measurable in monetary damages and is therefore irreparable, and (iii) in the event of unauthorized disclosure or use, the disclosing party will be entitled, without prejudice to any other rights, recourses or remedies, be entitled to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction to enforce the obligations set forth in this Agreement, without obligation to post bond.

  9. PCI Compliance; Privacy.

    1. PCI Compliance.

      Omnivore acknowledges and agrees that it is responsible for the security of Cardholder Data which it processes, transmits or otherwise possesses and agrees that it will perform the services in compliance with the requirements described in the PCI DSS. "PCI DSS" means the Payment Card Industry Data Security Standard, as amended from time to time. "Cardholder Data" has the meaning given to such term in PCI DSS, to the extent that Omnivore transmits, stores or provides access to such data for its customers.

    2. Privacy.

      This Agreement incorporates by reference the terms of Omnivore’s Privacy Policy which can be found at https://panel.omnivore.io//legal/privacy-policy.

  10. NO WARRANTY

    THE CUSTOMER ACKNOWLEDGES AND AGREES THAT CERTAIN THIRD-PARTY INTEGRATION SOFTWARE (THE "INTEGRATION SOFTWARE") MAY BE NECESSARY TO EXERCISE ITS RIGHTS HEREUNDER AT AN ADDITIONAL COST. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CUSTOMER IS SOLELY RESPONSIBLE FOR THE SELECTION OF ANY SUCH INTEGRATION SOFTWARE. OMNIVORE IS NOT RESPONSIBLE FOR ANY FAILURE OF ANY OF THE INTEGRATION SOFTWARE OR ANY OTHER THIRD-PARTY SOFTWARE, HARDWARE OR PRODUCTS ("THIRD-PARTY MATERIALS"). OMNIVORE MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT REGARDING ANY SUCH THIRD-PARTY MATERIALS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE OMNIVORE Software IS PROVIDED ON AN "AS-IS" BASIS AND OMNIVORE DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT. OMNIVORE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. OMNIVORE PROVIDES NO WARRANTY THAT THE OMNIVORE SOFTWARE PROVIDED BY OMNIVORE ARE ERROR-FREE OR THAT OPERATION OF SUCH OMNIVORE SOFTWARE WILL BE SECURE OR UNINTERRUPTED.

  11. LIMITATION OF LIABILITY.

    IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY THE OTHER PARTY, FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE OMNIVORE SOFTWARE REGARDLESS OF WHETHER THE PARTY HAS ADVISED THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT. EXCEPT FOR OMNIVORE’S OBLIGATIONS UNDER SECTION 12.2, IN NO EVENT WILL OMNIVORE BE LIABLE UNDER THIS AGREEMENT IN CONNECTION WITH THE OMNIVORE SOFTWARE, IN TORT OR OTHERWISE FOR AN AMOUNT EXCEEDING THE AGGREGATE FEES ACTUALLY RECEIVED BY OMNIVORE IN CONNECTION WITH THE OMNIVORE SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT.

  12. Indemnification.

    1. By the Customer.

      The Customer will defend Omnivore against any claim, demand, suit or proceeding made or brought against Omnivore by a third party alleging: (i) a violation of its customer’s or third party’s rights arising from or related to the Customer Data, including the Customer’s provision of the Customer Data to Omnivore or Omnivore’s authorized use of the Customer Data in connection with providing the Omnivore Software in accordance with this Agreement; (ii) that the combination of the Omnivore Software with a third party’s intellectual property is an infringement of a third party’s intellectual property rights; and/or (iii) that the Customer’s use of the Omnivore Software caused harm to a third party (each, an "Omnivore Claim") and will indemnify Omnivore for any damages, attorney fees and costs finally awarded as a result of, and for any amounts paid by Omnivore under a court-approved settlement of an Omnivore Claim; provided that Omnivore: (a) promptly gives the Customer written notice of such Omnivore Claim; (b) gives the Customer sole control of the defense and settlement of the Omnivore Claim (provided that Customer will not consent to entry of any judgment or admission of any liability of Omnivore without the prior written approval of Omnivore); and (c) provides to the Customer reasonable assistance, at Customer’s expense.

    2. By Omnivore.

      Omnivore will defend the Customer against any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging that its use of the Omnivore Software infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or if Omnivore has failed to comply with Section 9 (a "Customer Claim") and will indemnify the Customer for any damages, attorney fees and costs finally awarded as a result of, and for any amounts paid by the Customer under a court-approved settlement of a Customer Claim; provided that the Customer: (a) promptly gives Omnivore written notice of such Customer Claim; (b) gives Omnivore sole control of the defense and settlement of the Customer Claim (provided that Omnivore will not consent to entry of any judgment or admission of any liability of Customer without the prior written approval of Customer); and (c) provides to Omnivore reasonable assistance, at Omnivore’s expense.

  13. General.

    1. Severability.

      The terms and conditions of this Agreement are severable. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

    2. Assignment.

      The Customer may not assign any rights and duties under this Agreement to any third party at any time without Omnivore’s written permission. A change of control (any change of ownership of the Customer of more than 50%) will be deemed an assignment. This Agreement will inure to the benefit of and will be binding on Omnivore and Omnivore’s respective successors and permitted assigns. Omnivore will have the right to transfer and assign its rights and obligations hereunder to any third party, upon written notice to the Customer. Any assignment or attempted assignment other than in accordance with this Section will be null and void.

    3. Relationship of the Parties.

      No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever.

    4. Notice.

      All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

    5. Governing Law; Venue.

      This Agreement will be governed by the laws of the State of Florida without regard to its conflict of laws provisions. The parties expressly consent to the exclusive jurisdiction and venue of the state and federal courts located in Tampa, Florida.

    6. Costs of Litigation.

      If a dispute should arise relating to this Order From or any right or license granted hereunder, and should that dispute result in litigation or arbitration, the prevailing party in any such proceeding is entitled to recover all reasonable costs incurred in the defense or prosecution of the claim, including court costs and reasonable attorney, paralegal, litigation vendor, and expert fees.

    7. Malware.

      Each party warrants that it has taken, and will take, commercially reasonable measures to prevent any unplanned interruption of the operations of, or accessibility to the Omnivore Software through any device, method or means including, without limitation, the use of any "virus," "lockup," "time bomb," "key lock," "Trojan horse," or other device or program, or disabling code, which has the potential or capability of causing any unplanned interruption of the operations of, or accessibility of the Omnivore Software, or which could alter, destroy, or inhibit the use thereof, or the data contained therein, which could block access to, or prevent the use of the Omnivore Software.

    8. No Waiver.

      Failure by Omnivore to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

    9. Entire Agreement.

      This Agreement and any applicable Order Form, are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written (including online) and oral agreements, communications and other understandings relating to the subject matter of this Agreement and any applicable Order Form, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

    10. Force Majeure.

      Notwithstanding any other provision of this Agreement, no party to this Agreement will be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure of performance (except for the payment of money) due to any cause beyond the reasonable control of, and without the fault or negligence by, such party or its officers, directors, employees, agents or contractors.

    11. Publication.

      1. Omnivore will have the right to use the Customer’s trade and/or legal name and logo(s) in its promotional materials stating that the Customer uses the Omnivore Software.

      2. The Customer may not issue any press release or other public communication referencing Omnivore without first obtaining Omnivore’s written consent.