Omnivore.io

Terms of Service - Omnivore Software

Last Modified: July 1, 2019

These Terms of Service (this “Agreement”) constitute a binding agreement by and between the party accepting or signing 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”), all of which is defined as “Omnivore Software.” The parties may 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, right and license, during the Term (as defined in Section 7 or on an Order Form), to access or install and run the Omnivore Software that may be provided by Omnivore to the Customer, and/or a service provider of the Customer on a point-of-sale system(s).

  2. License Restrictions.

    The Customer shall 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. Data Ownership.

    1. Omnivore Data.

      The Customer acknowledges and agrees that, as between the parties, Omnivore retains all right, title and interest in and to all data associated with Omnivore’s respective products and services (the “Omnivore Data”), and the Customer shall acquire no right, title or interest in or to such Omnivore Data, including any intellectual property rights therein. The Customer also acknowledges and agrees that Omnivore has the right to use, for any internal business purpose, data or information made accessible by the Customer to Omnivore via the Omnivore Software.

    2. Applications and Services.

      If the Customer provides an application or service (the “Service”), the Customer agrees that Omnivore may: (i) process 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.

    3. Merchant Operators.

      If the Customer is a merchant operator, the Customer agrees that Omnivore may: (i) process the merchant operator’s data via the Omnivore Software; and (ii) collect the merchant operator’s point-of-sale transaction and configuration data (which will not include any personally identifiable information or sensitive credit card information of the merchant operator’s customers) that is processed via the Omnivore Software and sell or license it to a third party so that they can use it only on an aggregated and/or anonymized basis.

  4. 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. Omnivore shall 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, perform, and create derivative works of the Feedback; and (ii) use the Feedback and/or any subject matter thereof, including without limitation, the right to 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.

  5. Ownership; Reservation of Rights.

    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 shall 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.

  6. Fees; Payment Terms.

    1. Fees, if any.

      If the Customer has an Order Form which requires the Customer to pay fees, then the Customer will do so in accordance with the terms and conditions set forth on the Order Form. If there are no payment terms in the Order Form, then the Customer will submit payment in accordance with the terms of Section 6.2. Payment obligations are non-cancelable and all fees paid are non-refundable.

    2. Payment Terms.

      Fees are due net thirty (30) days from the invoice date. The Customer is responsible for providing complete and accurate billing and contact information to Omnivore and notifying Omnivore of any changes to such information. If any 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. If the Customer fails to pay any invoice prior to the due date more than three (3) times in any rolling six (6)-month calendar period, then Omnivore may 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.

    3. 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 shall be solely responsible for payment of any Taxes, except for those taxes based on the income of Omnivore.

  7. Term and Termination.

    1. Term.

      The “Term” of this Agreement will continue until either party gives the other party at least thirty (30) days written notice (including notice by email) that they wish to end this Agreement; provided however, that if there is an Order Form, the pricing set forth in the Order Form will be in effect per the length of time set forth in the Order Form (the “Pricing Term”). If the Customer continues to use the Omnivore Software after the expiration of the Pricing Term, then the Customer will pay Omnivore its then-current list prices for the Omnivore Software. Either party may terminate this Agreement and any Order Form immediately if the other party breaches any material provision of this Agreement (failure to pay will be considered a material provision of this Agreement) and such breach is not cured within thirty (30) days of the notice of such breach.

    2. Effect of Termination.

      In the event that this Agreement is terminated for any reason, all license rights with respect to the Omnivore Software shall immediately terminate, and the Customer shall: (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, if any.

    3. Survival.

      Upon termination of this Agreement, all obligations in this Agreement shall terminate, provided that Sections 2 (License Restrictions), 3 (Data Ownership), 4 (Feedback), 5 (Ownership; Reservation of Rights), 6 (Fees; Payment Terms), 7 (Term and Termination), 8 (Confidentiality), 9 (PCI Compliance), 10 (No Warranty), 11 (Limitation of Liability); 12 (Indemnification), and 13 (General) shall survive.

  8. Confidentiality.

    The Customer acknowledges that the existence of this Agreement, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that the Customer have received or will receive in connection with this Agreement, are considered private and confidential (the “Confidential Information”). The Customer 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. The Customer 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. Recognizing that actual damages for breach of this Confidentially provision might be difficult to quantify, the Customer’s breach of this Confidentiality provision shall subject the Customer to liquidated damages in the amount of $100,000.

  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 shall 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 OMNIVORE BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY THE CUSTOMER, WHETHER DIRECT, 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 CUSTOMER HAS ADVISED OMNIVORE OF THE POSSIBILITY OF SUCH DAMAGES. OMNIVORE'S AGGREGATE LIABILITY IN RESPECT OF ANY AND ALL CLAIMS WILL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00). 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.

  12. Indemnification.

    The Customer shall defend Omnivore against any claim, demand, suit or proceeding made or brought against Omnivore by a third party alleging that its use of the Omnivore Software in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim”) and shall 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 a Claim; provided that Omnivore: (a) promptly gives the Customer written notice of such Claim; (b) gives the Customer sole control of the defense and settlement of the Claim (provided that the Customer may not settle any Claim unless the settlement unconditionally releases Omnivore of all liability); and (c) provides to the Customer reasonable assistance, at its 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 shall 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 shall be governed by the laws of the State of California 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 San Francisco County, California.

    6. Binding Arbitration.

      Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by confidential and binding arbitration before Judicial Arbitration and Mediation Services (JAMS) in San Francisco, CA before a single arbitrator. The language to be used in the arbitral proceedings shall be English. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. An arbitrator shall be selected in accordance with Rule 15 of JAMS’s Comprehensive Arbitration Rules and Procedures. Judgment on the arbitrator's award may be entered in any court having jurisdiction. The parties agree to keep all disputes arising under this Agreement confidential, except as necessary in connection with a judicial challenge to or enforcement of an award or unless otherwise required by law or judicial decision. The arbitrator may issue orders to treat any information regarding such proceedings, including the award, as Confidential Information under this Agreement. This Section shall not preclude Omnivore from seeking equitable relief to protect its interests, including but not limited to injunctive relief, from a court of appropriate jurisdiction. The prevailing Party in any action arising from or relating to this Agreement shall be entitled to recover its reasonable attorneys' fees and costs including, without limitation, arbitration fees and fees of experts.

    7. 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.

    8. 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.

    9. Force Majeure.

      Notwithstanding any other provision of this Agreement, no party to this Agreement shall 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.

    10. Publication.

      Omnivore shall 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.

    11. Omnivore Information.

      Omnivore is a Delaware corporation with offices located at 22320 Foothill Blvd., Suite 250, Hayward, California, 94541.