Terms of Service - Omnivore Software

These Terms of Service (this "Agreement") constitute a binding agreement by and between the party accepting this Agreement (the "Customer") and Olo Inc. (as successor-in-interest to Omnivore Technologies, Inc., "Olo") regarding the use of Olo’s proprietary Omnivore 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 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.

Olo reserves the right to update and change, from time to time at its sole discretion, this Agreement and all documents incorporated by reference. You can always find the most recent version of this Agreement at https://panel.omnivore.io/legal/terms-of-service; please check back for any changes that may impact you. If a significant change is made, Olo will provide reasonable notice by email or by posting a notification on the Olo Dashboard and/or in the Developer Portal. Use of the Omnivore Software after any such changes constitutes acceptance of such changes.

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, Olo 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 Olo 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 Olo’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, Olo 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. Olo 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 Olo and Customer, Customer owns the Customer Data. Customer hereby grants and agrees to grant to Olo a limited-term, worldwide, non-exclusive, non-transferable, non- sublicensable, royalty-free license to host, copy, transmit, display, process and use the Customer Data as set forth in Section 4 and for the purpose of providing the services to Customer. "Customer Data" will mean all data and other information that Customer provides or makes available to Olo in connection with this Agreement.

4. Customer’s Consent to Use.

   1. Customer grants Olo the right to collect, use and disclose Customer Data (i) on an aggregated and anonymized basis for Olo’s business purposes; (ii) to provide, manage, maintain, enhance, optimize, improve, and add to the Services, including to service providers that enable or supplement Olo's provision of the Services; (iii) as elected by Customer in writing (email acceptable) in connection with Customer’s use of the Services (including, to Customer third party providers whose services Customer elects to use) provided that Olo shall have no liability to Customer for the disclosure or misuse of Customer Data by any such third party provider; and (iv) to enforce Olo’s rights under this Agreement. Notwithstanding anything to the contrary in the Agreement, Olo shall have the right to use Customer Data and any other data provided by Customer to link or combine user information with other end user PII in order to provide the Services. Olo may sell or license Customer Data to a third party, provided that such party uses it on an anonymized and aggregated basis.

   2. POS Provider Data Waiver

      If the Customer uses the Omnivore Software to send and receive data from the Customer’s point of sale system and related products (“POS Products”), the Customer hereby agrees that the POS Products provider (“POS Provider”) may enable Olo to send and receive data to and from the Customer. The Customer acknowledges that such enablement will not constitute a breach of POS Provider’s obligations under any agreement between the Customer and POS Provider. The Customer further acknowledges that POS Provider is not responsible for, and the Customer hereby releases POS Provider from all liability arising from, (i) harm caused by Olo, including through the unauthorized disclosure or use of the Customer’s data; and (ii) the Customer’s relationship with Olo. POS Provider is entitled to enforce the terms of this paragraph as an intended third-party beneficiary.

5. Feedback.

   The Customer may, from time to time, provide suggestions, comments for enhancements or functionality or other feedback ("Feedback") to Olo with respect to the Omnivore Software. If the Customer provides any Feedback Olo 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 Olo 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, Olo will have the right to charge the credit card on the day the invoice is created by Olo.

   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 Olo and notifying Olo of any changes to such information. Any delay in payment by the Customer due to Olo having inaccurate billing information will be subject to the terms of Section 6.e.

   4. Invoice Dispute.

      The Customer must notify Olo’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 Olo 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 Olo 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 Olo by the due date, then at Olo’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 Olo within thirty (30) days from the time such payment is due, Olo 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 Olo all amounts owed PLUS a reinstatement fee equal to one (1) month of the support fees 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 Olo no longer can make the Omnivore Software available to the Customer, then Olo 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 Olo 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.

7. Term and Termination.

   1. Term.

      The term of this Agreement (“Term”) shall be set forth in the applicable Order Form. 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 begin on either (I) the day that this Agreement has been accepted, or (II) the Effective Date of the applicable Order Form, and shall remain in force for a period that shall expire once Customer has ceased using any of the Omnivore Software. In no case shall these Terms of Service terminate while Customer’s access to the Omnivore Software under an Order Form referencing or incorporating them remains active.

   2. Termination for Cause; Opportunity to Cure.

      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.

      Olo reserves the right to suspend delivery of the service if Omnivore reasonably concludes that Customer is causing immediate and ongoing harm to Olo or the security, integrity, or availability of the Omnivore Software. Olo 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 Olo must suspend delivery of the Omnivore Software, Olo will promptly notify Customer of the suspension and the parties will diligently attempt to resolve the issue. Olo 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 Olo’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 Olo 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 Olo all amounts due and owing under this Agreement or any Order Form. If the Customer has given Olo the permission to use its logo and/or trademarks, then such right will terminate when this Agreement is terminated. Customer will cease referencing Omnivore or Olo in any public communications if Olo has granted Customer a right to do the same.

   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 (Payment Terms), 7(e) (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. “Confidential Information” means any information that is directly or indirectly disclosed or made accessible by, or on behalf of, one party to the other party in connection with this Agreement, and which is identified as “confidential” or “proprietary” or which, given the nature of the information or circumstances surrounding the disclosure, should reasonably be understood by the receiving party to be confidential or proprietary, but does not include information that the receiving party can demonstrate it already rightfully knew or possessed, becomes public through no fault of the receiving party, is obtained by the receiving party from a third party with the legal right to disclose it, or can be shown to have been independently developed by the receiving party without reference to the discloser’s Confidential Information.

      2. A party receiving Confidential Information may only use Confidential Information to exercise its rights and fulfill its obligations under this Agreement and will take reasonable measures to avoid unauthorized disclosure or misuse of the Confidential Information, including, but not necessarily limited to, taking such security precautions as it takes to protect its own Confidential Information. During and after the Term, the receiving party agrees not to disclose Confidential Information, except (a) to its employees, agents, independent contractors, or professional advisors who have a need to know the same and who are legally bound to keep it confidential; (b) to a potential acquirer of the receiving party’s relevant assets, stock, or business under a strict duty of confidentiality, but only to the extent such potential acquirer has executed a term sheet, letter of intent or other similar agreement to negotiate such acquisition, and (c) as required to be disclosed by applicable law (including the regulations of any securities exchange), or judicial or other governmental or regulatory order (provided that the disclosing party must use reasonable efforts to notify the other party, unless legally prohibited, prior to disclosure in order to afford such other party the opportunity to at its own expense seek a protective order or otherwise prevent or limit the disclosure). For the avoidance of doubt, the terms of this Agreement are Confidential Information belonging to both parties.

9. PCI Compliance.

   Olo 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 Olo transmits, stores or provides access to such data for its customers.

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. OLO IS NOT RESPONSIBLE FOR ANY FAILURE OF ANY OF THE INTEGRATION SOFTWARE OR ANY OTHER THIRD-PARTY SOFTWARE, HARDWARE OR PRODUCTS ("THIRD-PARTY MATERIALS"). OLO 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 OLO DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT. OLO 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. OLO PROVIDES NO WARRANTY THAT THE OMNIVORE SOFTWARE PROVIDED BY OLO IS 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 OLO’S OBLIGATIONS UNDER SECTION 12.2, IN NO EVENT WILL OLO 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 OLO IN CONNECTION WITH THE OMNIVORE SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT.

12. Indemnification.

    1. By the Customer.

       The Customer will defend Olo against any claim, demand, suit or proceeding made or brought against Olo 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 Olo 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 "Olo Claim") and will indemnify Olo 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 Olo Claim; provided that Olo: (a) promptly gives the Customer written notice of such Olo Claim; (b) gives the Customer sole control of the defense and settlement of the Olo Claim (provided that Customer will not consent to entry of any judgment or admission of any liability of Olo without the prior written approval of Olo); and (c) provides to the Customer reasonable assistance, at Customer’s expense.

    2. By Olo.

       Olo 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 Olo 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 Olo written notice of such Customer Claim; (b) gives Olo sole control of the defense and settlement of the Customer Claim (provided that Olo 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 Olo reasonable assistance, at Olo’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.

       Neither party may assign or transfer any part of this Agreement without the prior written consent of the other party except that this Agreement may be assigned without consent: (a) to a person or entity who acquires all or substantially all of the assigning party’s assets, stock or business, and (b) to any affiliate or subsidiary of a party; in each case, so long as the assignee accepts the obligations hereunder in writing. Any purported assignment of rights or obligations, except as expressly permitted herein, will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns.

    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 and other communications sent under this Agreement must be in writing (including by email) and will be deemed effective when delivered. All notices shall be sent to the applicable mailing address or email address set forth on the signature page hereof.

    5. Governing Law; Venue.

       This Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions.

    6. Costs of Litigation.

       If a dispute should arise relating to this Agreement 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 Olo 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.

    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. Olo 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 Olo without first obtaining Olo’s written consent.