Master Agreement: Terms of Service

• 1.

  DEFINITIONS

  • 1.1.

    “Add-Ons” means additional product enhancements (including limit increases and other add-ons) that are made available for purchase.

  • 1.2.

    “Agreement” or “Master Agreement” or “Terms of Service” means these General Terms and all materials referred or linked to in here, unless otherwise stated.

  • 1.3.

    “Billing Period” means the period for which you agree to prepay fees under an Order Form. This may be the same length as the Subscription Term specified in the Order Form, or it may be shorter. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.

  • 1.4.

    “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.

  • 1.5.

    “Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.

  • 1.6.

    “Sales Orders” means any purchase or request made by an End-Customer to buy a product or more from the Seller.

  • 1.7.

    “Online Orders” means any purchase or request made through an electronic platform, such as a website or mobile app. The End-Customer selects the desired products, enters payment and shipping information, and submits the order for processing. The merchant then fulfills the order and delivers the products to the End-Customer.

  • 1.8.

    “Inventory” refers to the physical products that are in Hubs to be sold on Sales Channels.

  • 1.9.

    “Seller” is the entity that offers products for sale to customers through Sales Channels. The Seller is responsible for providing the goods to End-Customers and complying with all relevant laws, regulations, and terms and conditions agreed upon with the Sales Channels including maintaining accurate product information, responding to customer inquiries, and meeting certain performance metrics. The Seller is the rightful owner of the Inventory.

  • 1.10.

    “Sales Channel” means any e-commerce software, or 3rd party marketplace integrated with Omniful, where the Seller receives B2C or B2B online orders to manage through Omniful software solutions.

  • 1.11.

    “Hub” means a physical place that holds and stores inventory that the Seller wishes to utilize in order fulfillment, could be a brick-and-mortar retail store that serves walk-in customers, or a dark store that doesn’t serve walk-in customers, or a warehouse (fulfillment center).

  • 1.12.

    “Shared Hub” means a physical place that holds and stores inventory owned by multiple Sellers.

  • 1.13.

    “Shipping Provider” means a third-party last-mile and delivery company that would pick-up orders from the Hubs to deliver to the End-Customer.

  • 1.14.

    “SKU” is a term that stands for “Stock Keeping Unit” which is a unique identifier assigned to a specific product or variation of a product. This identifier is used to track inventory, manage orders, and organize product information.

  • 1.15.

    “Catalog” means the master catalog for the Seller to manage the centralized product information to be used internally and for order fulfillment purposes.

  • 1.16.

    “Listing” means the product information that is specific to a certain Sales Channel, Omniful allows merchants, or Sellers, to manage inventory of listings programmatically, and also if the Sales Channel allows pricing changes through API.

  • 1.17.

    “Customer Data” means all information that you submit or collect via the Subscription Service, including the data inputted by the Customer and Authorized Users for the purpose of using the Services, including but not limited to catalog/product content, products’ specifications, images, prices, costs, inventory records, Sales Channel credentials, shipping provider credentials. Customer Data does not include Omniful Content.

  • 1.18.

    “Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.

  • 1.19.

    “Dashboard” means any web interface provided by Omniful.

  • 1.20.

    “Omniful Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Omniful products, or Subscription Service or Consulting Services.

  • 1.21.

    “Order Form” means the Omniful-approved form or online subscription process by which you agree to use and subscribe to the Subscription Service of any of Omniful’s products, services, Add-ons, or Consulting Services.

  • 1.22.

    “Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data and (ii) is protected as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).

  • 1.23.

    “Product Specific Terms” means the additional product-related terms that apply to your use of Omniful products, our consulting services, and Third-Party Products.

  • 1.24.

    “Sensitive Information” means credit or debit card numbers; financial account numbers or wire instructions; government issued identification numbers, biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR (as defined in the DPA) or any other applicable law relating to privacy and data protection.

  • 1.25.

    “Omniful Product” means any of the current or future Omniful SaaS products, including but not limited to Omniful Core, Omniful Commerce, Omniful POS, Omniful Fleet, Omniful Ledger, Omniful Supply Chain, and Omniful Grow.

  • 1.26.

    “Subscription Service” means all of our web-based and mobile-based applications, tools, and platforms that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via https://omniful.com or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.

  • 1.27.

    “Subscription Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any).

  • 1.28.

    “Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Omniful apps available from, for example, our marketplaces, directories, and links made available through the Subscription Services.

  • 1.29.

    “Third-Party Sites” means third-party websites linked to from within the Subscription Service, including Communications Services.

  • 1.30.

    “Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) for all of your Omniful accounts, but this amount excludes fees for renewals, Consulting Services, and applicable taxes.

  • 1.31.

    “Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Omniful Product or Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.

  • 1.32.

    “Omniful”, “we”, “us” or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.

  • 1.33.

    “You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer and your Affiliates included in the scope of your purchase.

  • 1.34.

    “Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.

  • 1.35.

    “Business Day” means a day other than the official weekend or public holiday in The United Arab Emirates, The Kingdom of Saudi Arabia or India.

  • 1.36.

    “Documentation” means the information made available to the Customer by the Supplier online via www.omniful.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions, guides, and tutorials for the Services.

  • 1.37.

    “Commencement Date” means the date of this Agreement.

  • 1.38.

    “Normal Business Hours” means from 9.00 am to 6.00 pm KSA time, each Business Day.

• 2.

  USE OF SERVICES

  • 2.1.

    During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement and the applicable Order Form. We may provide your Users access to use any of our additional Services at any time by activating them in your Omniful account. We might provide some or all elements of the Subscription Service through third-party service providers.

  • 2.2.

    You must ensure that all access, use, and receipt by your Users is subject to and in compliance with this Agreement. You may provide access and use of the Subscription Service to your Affiliate’s Users or allow them to receive the Consulting Services purchased under this agreement or an Order Form; provided that, all such access, use, and receipt by your Affiliate’s Users is subject to and in compliance with the Agreement and you will at all times remain liable for your Affiliates’ compliance with the Agreement.

  • 2.3.

    Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order Form or activating the additional features from within your Omniful account (if this option is made available by us.). This Agreement will apply to all additional Order Form(s) and all additional features that you activate from within your Omniful account.

  • 2.4.

    Limits. The limits that apply to you will be specified in your Order Form, this Agreement or in our Product description from within the product itself. For further information on the limits that apply to your subscription, please refer to the Product-Specific Terms.

  • 2.5.

    Modifications. We modify the Omniful Products and Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. For further information on our modification rights that apply to your subscription, you will receive periodic information on new releases and the details of changes and modifications.

  • 2.6.

    Prohibited and Unauthorized Use. You will not use the Subscription Service in any way that violates the terms of the Agreement or for any purpose or in any manner that is unlawful or prohibited by this Agreement or applicable laws.

  • 2.7.

    You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service.

  • 2.8.

    The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You may not use the Subscription Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Nothing contained in this section limits the usage restrictions specific to Sensitive Information under the Agreement.

  • 2.9.

    You will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account by email to [email protected]

  • 2.10.

    No Sensitive Information. You acknowledge that the subscription services have not been designed to process or manage sensitive information and accordingly you agree not to use the subscription service to collect, manage or process sensitive information. we will not have and we specifically disclaim any liability that may result from your use of the subscription service to collect, process, or manage sensitive information.

  • 2.11.

    Customer Responsibilities. To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a project manager, an online sales sponsor, an operations executive sponsor, and a technical resource (or equivalent). Responsibilities that may be required include planning and implementation of order fulfillment flows; setup of an existing and new Sales Channels; and other materials; acting as internal liaison between online sales and operations; providing top-level internal goals for the use of the Subscription Service; attending regular success review meetings; and supporting the integration of the Subscription Service with other sales and operations systems.

  • 2.12.

    Free Trial. If you register for a free trial, we will make the applicable Subscription Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Subscription Service before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well.

  • 2.13.

    Legacy Products. If you have a legacy Omniful product, some of the features and limits that apply to that product may be different than those that appear in these General Terms, Product Specific Terms, and/or the Product and Services Catalog. If you have legacy Omniful products, we may choose to move you to our then-current products at any time. If you determine that you are using a legacy product and would like to upgrade to a current version, you must execute a new Order Form.

• 3.

  Fees

  • 3.1.

    Subscription Fees. The Subscription Fee will remain fixed during the initial term of your subscription unless (i) you exceed your Maximum Orders, Users, Hubs, Integration Apps, or other applicable limits (see the ‘Limits’ section above), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, including additional Orders, or (iv) otherwise agreed to in your Order Form. We may also choose to decrease your fees upon written notice to you. According to your selected Plan, you may be charged additional usage fees if outlined in the fee structure of the selected plan.

  • 3.2.

    Fee Adjustments at Renewal. Upon renewal, we may increase your fees up to our then-current list price set out for our Products. If this increase applies to you, we will notify you at least sixty (60) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate your subscription at the end of your then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section below.

  • 3.3.

    Payment of Fees. If you are paying by credit card, you authorize us to charge your Authorized Payment Method for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. If payment is done through Bank Transfer or another payment method, it will be applied manually and reflected on your Omniful account within 7 days of receiving the payment on our side.

  • 3.4.

    Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.

  • 3.5.

    Payment Information. You will keep your Authorized Payment Method, contact information, billing information up to date for the payment of incurred and recurring fees, as applicable. Changes may be made on your Billing Page within your Omniful account. You authorize Omniful to continue to charge your Authorized Payment Method for applicable fees during your Subscription Term and until any and all outstanding Fees have been paid in full. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are an Omniful Solutions Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.

  • 3.6.

    Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You will have no liability for any taxes based upon our gross revenues or net income. If you are located in the Kingdom of Saudi Arabia or United Arab Emirates or India, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST.

• 4.

  TERM AND TERMINATION

  • 4.1.

    Term and Renewal. Your initial subscription term will be specified in your Order Form, and, unless otherwise specified in your Order Form, your subscription will automatically renew for the shorter of the subscription term, or one year.

  • 4.2.

    Notice of Non-Renewal. Unless otherwise specified in your Order, to prevent renewal of your subscription, you or we must give written notice of non-renewal. The deadline for sending this notice varies depending on the Omniful product and edition you have subscribed to.

  • 4.3.

    If you decide not to renew, you may send this non-renewal notice to us by indicating that you do not want to renew by turning auto-renew off by accessing the billing details information in your Omniful account, or by following the steps in the knowledge base article referring to how to cancel your Omniful account, as applicable.

  • 4.4.

    Early Cancellation. You may choose to cancel your subscription early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term.

  • 4.5.

    Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon sixty (60) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.

  • 4.6.

    We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

  • 4.7.

    This Agreement may not otherwise be terminated prior to the end of the Subscription Term.

  • 4.8.

    Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for:

    • 4.8.1.

      use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement,

    • 4.8.2.

      use of the Omniful services that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or

    • 4.8.3.

      repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity, or

    • 4.8.4.

      engage in selling and processing prohibited products through Omniful products.

  • 4.9.

    We may, without notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Customer Data or Customer Materials.

  • 4.10.

    Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.

  • 4.11.

    Suspension for Present Harm. If your Sales Channels, or use of the Subscription Service or our APIs:

    • 4.11.1.

      is being subjected to denial of service attacks or other disruptive activity,

    • 4.11.2.

      is being used to engage in denial of service attacks or other disruptive activity,

    • 4.11.3.

      is creating a security vulnerability for the Subscription Service or others,

    • 4.11.4.

      is consuming excessive bandwidth or storage, or

    • 4.11.5.

      is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.

  • 4.12.

    We will make commercially reasonable efforts to limit the suspension to the affected portion of the Subscription Service, and each party will make reasonable efforts to promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

  • 4.13.

    Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.

  • 4.14.

    Effect of Termination or Expiration. If your paid subscription is terminated or expires, we may continue to make available to you our Services provided however, this may not be the case if your Agreement was terminated for cause.

  • 4.15.

    You will continue to be subject to this Agreement for as long as you have access to an Omniful account.

  • 4.16.

    Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Omniful Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.

• 5.

  CUSTOMER DATA

  • 5.1.

    Customer’s Proprietary Rights. You own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as otherwise permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.

  • 5.2.

    Limits on Omniful. We will not use Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable law and this Agreement.

  • 5.3.

    Data Practices and Machine Learning on Usage Data. We may collect information about you and your Users when you interact with the Subscription Service as permitted by the Agreement.

  • 5.4.

    Machine Learning. We may, as permitted by this Agreement, use Customer Data in an anonymized manner for machine learning to support certain product features and functionality within the Subscription Service.

  • 5.5.

    Regional Data Hosting. We will store your Customer Data in a specific location or geographical region (e.g. North America or Europe or the Middle East) as part of your subscription subject to the terms of this Agreement and our Regional Data Hosting Policy.

  • 5.6.

    Customer Data Transfers. We and our Affiliates may transfer Customer Data (including Personal Data) to other regions in connection with the Subscription Service.

• 6.

  INTELLECTUAL PROPERTY

  • 6.1.

    This is an agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. We retain all intellectual property rights to the Omniful Products, Content, the Subscription Service, the Consulting Services, and any other products or services provided under this Agreement. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Omniful Products, Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.

• 7.

  CONFIDENTIALITY

  • 7.1.

    The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Subscription Service or Consulting Services and except for your Omniful Solutions Partner bound by confidentiality obligations), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

  • 7.2.

    The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure, including in circumstances where the Disclosing Party refuses to provide their consent or fails to respond to the Receiving Party’s inquiries in connection with the request to disclose the Confidential Information.

• 8.

  PUBLICITY

  • 8.1.

    You grant us the right to add your name and company logo to our customer list and website.

• 9.

  INDEMNIFICATION

  • 9.1.

    You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of

    • 9.1.1.

      unauthorized or illegal use of the Subscription Service by you or your Affiliates,

    • 9.1.2.

      your or your Affiliates’ noncompliance with or breach of this Agreement

    • 9.1.3.

      your or your Affiliates’ use of Third-Party Products, or

    • 9.1.4.

      the unauthorized use of the Subscription Service by any other person using your User Information.

  • 9.2.

    We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

• 10.

  DISCLAIMERS; LIMITATION OF LIABILITY

  • 10.1.

    Performance Warranty. We warrant that: (i) Omniful Products, the Subscription Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service; provided however, this warranty will not apply to you if you only use the Free Services.

  • 10.2.

    In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.

  • 10.3.

    We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement.

  • 10.4.

    This section states our entire liability and your sole and exclusive remedy with respect to any claim provided for under this section.

  • 10.5.

    Disclaimer of Warranties. Except as set forth in the ‘performance warranty’ section and without limiting our obligations in the ‘protection of customer data’ section of this agreement, we and our affiliates and agents make no representations or warranties about the suitability, reliability, availability, timeliness, security, accuracy or completeness of the subscription service, data synched to or made available from the subscription service, omniful content, or the consulting services for any purpose. application programming interfaces (apis) may not be available at all times. to the extent permitted by law, the subscription service, omniful content and consulting services are provided “as is” without warranty or condition of any kind. we disclaim all warranties and conditions of any kind, whether express, implied or statutory, with regard to the subscription service and the consulting services, including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.

  • 10.6.

    No Indirect Damages. To the extent permitted by law, in no event will either party or its affiliates be liable for any indirect, incidental, punitive, or consequential damages, or loss of profits, revenue, data or business opportunities arising out of or related to this agreement, whether an action is in contract or tort and regardless of the theory of liability; provided that, this limitation will not apply to you if you only use the free services.

  • 10.7.

    Limitation of Liability. Except for your liability for payment of fees, your liability arising from your obligations under the ‘indemnification’ section, and your liability for violation of our intellectual property rights, if, notwithstanding the other terms of this agreement, either party or its affiliates is determined to have any liability to the other party, its affiliates or any third party, the parties agree that the aggregate liability of a party and its affiliates will be limited to a sum equal to the total amounts paid or payable for the subscription service in the twelve month period preceding the event giving rise to a claim; provided however, this limitation will not apply to you if you only use the free services, and in this case, if we are determined to have any liability to you or any third party arising from your use of the free services, then our aggregate liability will be limited to One Hundred US Dollars.

  • 10.8.

    We shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.

  • 10.9.

    Third Party Products. We and our affiliates disclaim all liability with respect to third-party products that you use. our licensors will have no liability of any kind under this agreement.

  • 10.10.

    Agreement to Liability Limit. You understand and agree that absent your agreement to this limitation of liability, we would not provide the subscription service to you.

• 11.

  MISCELLANEOUS

  • 11.1.

    We may modify any part or all of the Agreement by posting a revised version at https://www.omniful.com/terms-of-service. The revised version will become effective and binding the next business day after it is posted. We will provide you notice of this revision by email.

  • 11.2.

    If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at https://www.omniful.com/terms-of-service. will apply. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.

  • 11.3.

    No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

  • 11.4.

    Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

  • 11.5.

    No Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

  • 11.6.

    Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

  • 11.7.

    Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.

  • 11.8.

    Compliance with Laws. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.

  • 11.9.

    You will comply with all applicable laws in your use of the Omniful Products, Subscription Service and Consulting Services.

  • 11.10.

    You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.

  • 11.11.

    Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

  • 11.12.

    Notices. To Omniful: Notice will be sent to [email protected] or [email protected], and will be deemed delivered as of the date of actual receipt.

  • 11.13.

    To you: your address as provided in our Omniful Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.

  • 11.14.

    Entire Agreement. This Agreement (including each Order Form), is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

  • 11.15.

    Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any Omniful affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

  • 11.16.

    No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

  • 11.17.

    Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods.

  • 11.18.

    Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.

  • 11.19.

    Survival. The following sections will survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees’, ‘Prohibited and Unauthorized Use’, ‘Early Cancellation’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Intellectual Property’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.

  • 11.20.

    Precedence. In the event of a conflict between the terms of the Agreement and an Order Form, the terms of the Order Form will control, but only as to that Order Form.

• 12.

  SERVICE-LEVEL-AGREEMENT

  • 12.1.

    The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance, excluding outages which are beyond our control (for example, outages caused by integration failures of ERP systems, marketplaces, e-commerce websites etc.), or software releases. If you request maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond our control will also be excluded from any such calculation. Your sole and exclusive remedy, and our entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than [one hour], we will credit you 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as you, the Customer (with notice to us, the Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, you must notify us in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. We will only apply a credit to the month in which the incident occurred. Intentional blocking or limiting of data communications or other service in accordance with our policies shall not be deemed to be a failure to provide adequate service levels under this Agreement.

  • 12.2.

    We as a company are frequently developing, enhancing and deploying new releases. In all such cases, the customers are notified in advance, and if such deployment would result in a downtime, such downtimes will not be considered as part of uptime metrics.

  • 12.3.

    System SLA Metrics. System SLA’s are defined by both severity of the issue and also the cause of the issue. For example, an issue may be severe, but if the cause of the issue is very difficult to solve, then it may take longer to resolve.

  • 12.4.

    Definitions:

    Item	Definition
    P1	Software system is inaccessible or disruption of service as a result of bug, system configuration issues, data inconsistency issue
    P2	Minor usability fixes or feature requests which take less than 2 weeks to implement
    P3	Major usability fixes or feature requests which take 2 weeks to 4 months to implement
    MAT	Mutually agreed timeline
    RCA	Root cause analysis
    TTR	Time to respond
    TTF	Time to fix

  • 12.5.

    SLA (In Hours):

    Priority	RCA	TTR	TTF	Total
    P1	System inaccessible due to networking, operating system, cloud related issues	4	4	8
    P1	Minor Bug which takes less than 1 day to fix	8	8	16
    P1	Major Bug which takes more than 1 day to fix	8	24	32
    P1	Software scalability issues	8	40	48
    P1	Data inconsistency issues (if any)	8	40	48
    P2	Minor usability fixes or feature requests which take less than 2 weeks to implement	80	MAT	MAT
    P3	Major usability fixes or feature requests which take 2 weeks to 2 months to implement	160	MAT	MAT

  • 12.6.

    P2 and P3 will be taken only if the request is aligned with the roadmap of Omniful Products from a feature perspective, and is architecturally applicable.

  • 12.7.

    In case we need some data / responses from you to fix the P1 issue, then SLAs will be affected by the response times of the client.

You expressly agree that the exclusive jurisdiction for any claim or dispute under these Terms and or your use of the Services resides in the courts located in Dubai, United Arab Emirates, and you further expressly agree to submit to the personal jurisdiction of such courts for the purpose of litigating any such claim or action. If it turns out that a particular provision in these Terms is not enforceable, that will not affect any other provision.