PLEASE READ THE FOLLOWING TERMS CAREFULLY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON AND LEAVE THE WEBSITE.
THE TERMS “YOU,” “YOUR (S)” AND “USER,” ARE USED INTERCHANGEABLY.
THESE TERMS CONSTITUTE AN AGREEMENT BY AND BETWEEN YOU AND OMNIVORE TECHNOLOGIES, INC., (“OMNIVORE”), A DELAWARE CORPORATION, WITH A PRINCIPAL BUSINESS ADDRESS OF 22320 FOOTHILL BLVD., SUITE 250, HAYWARD, CALIFORNIA, 94541. OMNIVORE PROVIDES THE OMNIVORE PROPERTY (DEFINED AS “OMNIVORE'S PROPRIETARY SOFTWARE, INCLUDING API, IN OBJECT CODE FORMAT ONLY”) PURSUANT TO THESE TERMS.
THIS AGREEMENT GOVERNS ANY FREE EVALUATION OF OMNIVORE PROPERTY. IF YOU CONTINUE TO USE THE OMNIVORE PROPERTY AFTER THE EVALUATION PERIOD, THIS AGREEMENT WILL ALSO GOVERN YOUR ONGOING USE.
BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS, OR EXECUTING ANY OTHER ORDERING DOCUMENT, WEB-BASED ORDERING MECHANISM OR REGISTRATION PROCESS, AGENT INSTALL, OR THROUGH THE REQUEST OF ANY SERVICES (EACH AN “ORDER”), YOU UNCONDITIONALLY ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, AND ITS AFFILIATES, TO THIS AGREEMENT, IN WHICH CASE THE TERM “USER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THE TERMS AND MAY NOT USE THE OMNIVORE PROPERTY. OMNIVORE AND USER MAY BE REFERRED TO HEREIN INDIVIDUALLY AS A “PARTY” OR COLLECTIVELY AS “PARTIES”.
1. Scope: Evaluation Period and Continued Use.
This Agreement applies (a) to the use of the Omnivore Property by You during the Term, which is the use of the Omnivore Property after executing an Order or consenting to Terms of Service. “Term” means the license period, commencing upon date of execution of an Order or User consent to Terms of Service, that is granted by Omnivore for the sole purpose of use of the Omnivore Property.
2. Evaluation License Terms & Conditions.
2.1. Right to Use.
Subject to the terms of this Agreement, Omnivore grants You during the Term a nonexclusive, nontransferable license, without right of sublicense, to use the Omnivore Property and any supporting documentation only for use and testing by You.
2.2. Terms & Conditions.
During the Term, all terms and conditions of this Agreement shall be applicable to Your use of the Omnivore Property. The term of this license will commence upon date of User request and continue for the length of the license Period, unless earlier terminated in accordance with Section 6 of this Agreement.
2.3. No Rights Upon Termination of the Evaluation Period.
You will have no rights upon termination of the evaluation period, and the terms of Section 6 below will govern.
3. Grant of License for Continued Use after Evaluation Period.
3.1. License to Omnivore Property.
Subject to Your compliance with the terms and conditions of this Agreement, Omnivore hereby grants to You a nonexclusive, revocable, worldwide, right and license, during the Term (as defined below), to: (a) install and run the Omnivore Property provided by Omnivore to User on onsite restaurant point-of-sale system(s) at multiple restaurant locations; and (b) use Omnivore's application program interface and other related materials provided or made available by Omnivore to User (collectively, the “Omnivore API”) solely to access activity and point-of-sale data from such restaurants (the “Data”), in each case, solely in connection with Your application(s). You will provide prompt written notice (email shall suffice) to Omnivore identifying all such restaurant locations.
3.2. License Restrictions.
You shall not use the Omnivore Property for any purpose other than the purposes expressly set forth herein without Omnivore's prior written consent. Except as expressly set forth herein, You may not (a) 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 Property, (b) use the Omnivore Property on behalf of any unauthorized third party, or (c) use the Omnivore Property in order to build a competitive product.
3.3. Rights to Data.
You acknowledge and agree 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 You shall acquire no right, title or interest in or to such Omnivore Data, including any intellectual property rights therein. You also acknowledge and agree that Omnivore has the right to use, for any business purpose, any data made accessible by You to Omnivore under this Agreement; provided that any third party agents of Omnivore are now and will continue to be bound by separate Agreements such that any use of such data will aggregate and/or anonymize such data to a degree sufficient to ensure that the identity of Users and/or individual patrons cannot be determined.
You may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Omnivore with respect to the Omnivore Property. Omnivore shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. You hereby grant to Omnivore a royalty free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) 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.
4. Ownership; Reservation of Rights.
You acknowledge and agree that, as between the Parties, Omnivore retains all right, title and interest in and to the Omnivore Property, 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 You under this Agreement, with respect to the Omnivore Property. You shall acquire no right, title, or interest in and to the Omnivore Property or any copies thereof (by whoever produced) other than the limited licensed rights expressly granted under this Agreement. You will not remove, obscure, or alter any intellectual property rights or notices relating to the Omnivore Property.
5. Fees; Payment Terms.
During the Term, User will pay to Omnivore the fees set forth on the applicable Order Form, if any, in accordance with the terms and conditions set forth therein. Payment obligations are non-cancelable and fees paid are non-refundable.
5.2. Payment Terms.
Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net 30 days from the invoice date. You are 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 Us by the due date, then at Our discretion such charges 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 Property until such payment is made.
5.3. Net of Taxes.
All amounts payable by User 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”). User shall be solely responsible for payment of any Taxes, except for those taxes based on the income of Omnivore.
This Agreement will continue in effect for the duration of the time the Omnivore Property is being used by You. Either Party may terminate this Agreement (and all licenses) immediately if the other Party breaches any material provision of this Agreement.
6.2. Effect of Termination.
In the event that this Agreement is terminated for any reason, all license rights with respect to the Omnivore Property shall immediately terminate, and You shall (a) cease use of the Omnivore Property; (b) return to Omnivore all copies or other embodiments of any of Omnivore's Confidential information (defined in Paragraph 7 below) received or obtained by you under this Agreement, and (c) pay to Omnivore all amounts due and owing under this Agreement, if any.
Upon termination of this Agreement, all obligations in this Agreement shall terminate, provided that Sections 3.2 (License Restrictions), 3.4 (Feedback), 4 (Ownership; Reservation of Rights), 5 (Fees; Payment Terms), 6 (Termination), 7 (Confidentiality), 8 (PCI Compliance), 9 (No Warranty), 10 (Limitation of Liability); 11 (Indemnification), and 12 (General) shall survive.
You acknowledge 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 you have received or will receive in connection with this Agreement, are considered private and confidential (the “Confidential Information”). You 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. You may only use the Confidential Information for the purpose of performing your obligations and exercising your rights hereunder and are 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, your breach of this Confidentiality provision shall subject you to liquidated damages in the amount of $100,000.
8. 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.
9. NO WARRANTY.
YOU ACKNOWLEDGE AND AGREE THAT CERTAIN THIRD-PARTY INTEGRATION SOFTWARE (SUCH AS THE INTEGRATION SOFTWARE OFFERED BY MICROS, POSITOUCH AND ALOHA) (THE “INTEGRATION SOFTWARE”) MAY BE NECESSARY TO EXERCISE YOUR RIGHTS HEREUNDER AT AN ADDITIONAL COST. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE 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 PROPERTY 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 EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. OMNIVORE PROVIDES NO WARRANTY THAT THE PRODUCTS OR SERVICES PROVIDED BY OMNIVORE ARE ERROR-FREE OR THAT OPERATION OF SUCH PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED.
10. LIMITATION OF LIABILITY.
IN NO EVENT WILL OMNIVORE BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY YOU, 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 PROPERTY REGARDLESS OF WHETHER YOU HAVE 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 ($100.00) DOLLARS. 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.
You shall defend Omnivore against any claim, demand, suit or proceeding made or brought against Omnivore by a third party alleging that your use of the Omnivore Property 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 You written notice of such Claim, (b) gives You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Omnivore of all liability), and (c) provides to You reasonable assistance, at Your expense.
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.
You may not assign any rights and duties under this Agreement to any party at any time without Omnivore's written permission. 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 (the “Assignee”), upon written notice to You. Any assignment or attempted assignment other than in accordance with this Section shall be null and void.
12.3. 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.
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.
12.5. Governing Law; Venue.
This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
12.6. 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.
12.7. 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.
12.8. Entire Agreement.
Except to the extent the parties have mutually executed and delivered a separate written agreement covering the same Omnivore Property (a “Separate Signed 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 and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. In the event of a conflict between the terms of this Agreement and the terms of a Separate Signed Agreement, the terms of the Separate Signed Agreement shall supersede and control.
12.9. Joint Drafting of Agreement
This Agreement shall be deemed to have been drafted equally by both Parties hereto, and shall not be construed against one Party or the other based on who may have drafted any particular provision hereof.