Omnicomm License Agreement
IMPORTANT! THIS AGREEMENT GOVERNS THE SUBSCRIPTION TERMS AT GLOBAL LEVEL
BY DOWNLOADING, USING, OR ACCESSING ANY OF OMNICOMM DEVICES, SERVICES AND OTHER PRODUCTS, INCLUDING UPDATES AND UPGRADES THEREOF (COLLECTIVELY «PRODUCTS» OR «SERVICE»), LICENSEE (OR «YOU») CONCLUDE A LEGALLY BINDING AGREEMENT BASED ON THE TERMS OF THIS LICENSE AGREEMENT (“AGREEMENT”) WITH OMNICOMM (OR «WE») ON BEHALF OF YOURSELF. IF YOU DO NOT WISH TO AGREE, DO NOT INSTALL, USE, ACCESS OR RETAIN ANY OF OUR PRODUCTS AND RETURN ANY PRODUCTS YOU HAVE PURCHASED TO THE SELLER FROM WHICH YOU PURCHASED SUCH PRODUCTS FOR A FULL REFUND OF THE PURCHASE PRICE.
The Omnicomm Service is owned and operated by Omnicomm. "Licensee" means Fleet Owner, Channel Partner and any registered licensee of the Service. "Omnicomm" means Omnicomm company. "Omnicomm Products or Service" means the Omnicomm Online Servise as a Service (SaaS), Omnicomm Configurator, Omnicomm fuel sensors, Terminals and other Firmware, Web-based application, mobile application and Omnicomm Online fleet management platform service generally made available to the public via https://online.omnicomm.ru. The "License Agreement" or "Agreement" means the Omnicomm License Agreement, a copy is available at https://www.omnicomm-world.com.
LICENSE AND SCOPE OF USE
Licensee acknowledges that in order to access and use the Service, Licensee must have a valid license to use the Omnicomm Service.
Subject to the terms and conditions of this Agreement and Licensee's payment to Omnicomm of the applicable fees, Omnicomm hereby grants to Licensee a limited, revocable, non-exclusive right to access, display and use the Omnicomm Service for Licensee's own internal and business purposes in connection with Omnicomm or other compatible in-vehicle telematics devices, on the condition and so long as Licensee complies with all terms and conditions of this Agreement. Licensee acknowledges that Omnicomm may from time to time modify, upgrade or provide new functionality to the Service. Licensee consents to such automatic upgrades of the Service, and agrees that this Agreement will apply to all such upgrades.
Licensee may: (i) rent, lease, loan, resell, sublicense, or distribute the Omnicomm Service to any third party or use the Omnicomm Service to provide time sharing or similar services for any third party;
Licensee may not: remove, adapt, modify, re-engineer, circumvent, disable, damage or otherwise interfere with security-related features of the Omnicomm Service, features that prevent or restrict use or copying of any content accessible through the Omnicomm Service, or features that enforce limitations on use of the Omnicomm Service.
Licensee agrees that following termination of Licensee's account and/or use of the Service, Omnicomm may immediately deactivate Licensee's account, and that Omnicomm shall not be liable to Licensee nor to any third party for any termination of Licensee's access to the Service.
As between Omnicomm and Licensee, all software applications, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service are owned by Omnicomm (collectively, the "Intellectual Property"). The Intellectual Property is protected by Russia copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All trademarks, service marks, and trade names displayed on the user interfaces of the Service are proprietary to Omnicomm or its affiliates and/or third-party licensors.
You are solely responsible for your failure to keep all user identifications and passwords (your “Login Credentials”) secure. If you believe the security of your Login Credentials has been compromised, or you suspect unauthorized use, you will promptly notify us. We will be entitled to treat all communications, instructions and transactions as authorized by you if your Login Credentials are used unless you have notified us of compromise or unauthorized use of your Login Credentials. If we suspect, in our reasonable opinion, fraudulent or unauthorized activity on your account, we reserve the right to terminate or suspend your access to our website or any applicable services or both and will contact you to advise of this decision.
CONFIDENTIALITY AND DATA TRANSFER
Omnicomm maintain reasonable technical and organizational security and data storage policies and measures for facilities within our control, in accordance with our Omnicomm Technical and Organizational Data Security Measures Statement, General Data Protection Regulation (GDPR) and local Standard and Regulations. Data may be stored or transmitted through third party facilities, third party services or common carriers, including without limitation the Internet, in the course of using our Service. We will not disclose your Individual Vehicle Data (as defined below) to any third party except in the following circumstances: a) to our service providers, who have a need to know in order to assist us in providing Service to you, and who have all agreed to confidentiality terms and use restrictions similar to those set forth herein; b) with your consent; c) to comply with a subpoena, warrant, court order or other legal requirement (but to the extent practicable and unless prohibited from doing so, we will provide you notice of the disclosure so that you may seek a protective order or otherwise object to the disclosure); or d) where a company acquires us.
YOUR VEHICLE DATA
We claim no ownership of any vehicle data that you generate and associate with our devices installed in your particular vehicle(s) (“Individual Vehicle Data”) and which you transmit or process using our Products. We will process and transmit Individual Vehicle Data to provide, maintain and improve our Products and perform obligations under this Agreement and applicable law. In furtherance of such purposes, based on certain non-position data elements in your vehicle database (such a vehicle VIN), from time to time in certain jurisdictions we may query, on a confidential basis, databases maintained by reputable third-party providers for additional information.
Omnicomm compiles, stores and uses aggregated data and system usage information to monitor and improve the Products and for the creation of new products. The aggregated data that we use in this manner is no longer associated with a device and as such is not Individual Vehicle Data. Omnicomm will not attempt to disaggregate the data or re-associate it with a device without your consent or unless legally compelled to do so or unless required for safety or troubleshooting purposes.
BILLING AND PAYMENT
The Service will be billed by Omnicomm via invoicing in accordance with the service plan that Licensee has chosen. In the event that Licensee fails to make the payments required hereunder for the Service, Omnicomm may suspend or terminate this contract. All payments for the Service to be paid to Omnicomm pursuant to this Agreement shall be without deducation of exchange, collection or other charges, and, specifically, without deduction of withholding or similar taxes or other government imposed fees or taxes.
Omnicomm warrant that during the Warranty Period our Service (excluding other test or demonstration products or product versions) will perform in accordance with the specifications that Omnicomm issue with respect to such Service, subject to the limitations and conditions set forth in Omnicomm specifications and this Agreement, when used in accordance with Omnicomm documentation and specifications. The Warranty Period is valid for the duration of this agreement. Provided Licensee properly complete and Omnicomm receive, directly or through a reseller, a justified written warranty claim, Omnicomm will use commercially reasonable efforts to correct any material defects in software and services.
CONDITIONS AND EXCLUSIONS
Warranty claims must be submitted promptly after the date when Licensee noticed the defect. In order to make a warranty claim, Licensee may be required to prove that the installation did not cause the defects or failures of the Service, unless the installation was performed by an Omnicomm-certified installer. Any products, services or items made or supplied by third parties (including vehicles tracked with Omnicomm Service) are not covered by Omnicomm warranty and Omnicomm is not responsible for malfunctions by or in such products, services or items. Licensee may need to purchase, license or procure products, software, data or services from third parties to enable the full use or functionality of Omnicomm Service. You are responsible for ensuring that all such third-party products, software, data or services meet Omnicomm minimum requirements, including without limitation, processing speed, memory, client software, internet access, internet or other communication channel bandwidth.
Except as expressly set forth in this agreement, to the maximum extent permitted by applicable law, Omnicomm cannot and do not represent, warrant or covenant that: (a) any of the services will meet licensee’s business or other requirements; (b) the services will operate or be provided without interruption; (c) the services will be error-free, virus-free or that the results obtained from their use will be accurate, reliable or current (d) any errors in the products can be corrected or found in order to be corrected. Moreover, Omnicomm do not endorse, and make no representation, or warranty with respect to, and assume no responsibility, obligation or liability for, any non-Omnicomm products, software, data or services including but not limited to wireless services, mapping services, posted road speed services, internet bandwidth and cloud storage.
LIMITATIONS OF LIABILITY
You agree that, to the maximum extent permitted by applicable law, in no event shall the liability of all indemnified parties to you hereunder or otherwise in respect of the products exceed the amount you have paid for the products or services or the rights to use the software in the twelve month period immediately preceding the time the cause of action arose, subject to any lesser limitation of liability in any terms incorporated herein by reference (including, without limitation, any third party terms) if applicable. Notwithstanding any other provision in this agreement, to the maximum extent permitted by applicable law, in no event will either party be liable for any special, incidental, indirect, or consequential losses or damages, including loss of revenue or profits, loss of data, business information or loss of use thereof, failure to realize expected profits or savings, cost of capital, loss of business opportunities, loss of goodwill or any other non-direct, pecuniary, commercial or economic loss or damage of any kind whether foreseen or unforeseen arising from or incidental to this agreement. For greater certainty, the foregoing limitations and exclusions of liability shall not apply to (a) either party’s indemnification obligations hereunder; or (b) infringement or misappropriation of the other party’s intellectual property rights.
The limitations, exclusions and disclaimers in this agreement will apply irrespective of the nature or form of the claim, cause of action, demand, or action, including breach of contract, tort (including negligence), strict liability, product liability or any other legal or equitable theory and shall apply notwithstanding the failure of the essential purpose of this agreement or of any remedy contained herein.
Omnicomm reserve the right to terminate this Agreement in whole or in part with or without notice if: (a) you materially breach or otherwise materially fail to comply with any provision of this Agreement; (b) we determine that any registration information you submit or any update thereof is not true, accurate, complete or current; (c) you become insolvent or bankrupt; (d) you reorganize your business, make an assignment under or otherwise take advantage as a debtor of, bankruptcy or insolvency laws, including having a trustee or receiver appointed; (e) any steps are taken to wind up or otherwise terminate your existence as a legal entity; or (f) you cease operating your business. You may terminate the grant of rights to use the software or the provision of services by ceasing use of same. Upon any termination of this Agreement: (i) any and all rights granted to you under this Agreement shall immediately cease; (ii) you shall destroy, to the extent practicable, all copies of the software in your possession or control; (iii) if so requested by us, you shall certify in writing that all such copies of the software in your possession or control have been destroyed; and (iv) you shall cease all usage of the services. Upon request we will transmit to you a copy of data stored on our systems as of the date of termination, and we may condition this assistance on payment of reasonable fees and cost reimbursements, based on the size of the database and complexity of the task.
CHOICE OF LAW
If Licensee is located:
a) in India, Bangladesh, Sri Lanka, Nepal, Bhutan, then this Agreement will be governed by and construed under the Law of India without giving effect to its conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any dispute, controversy or claim arising out of or relating to the Agreement shall be resolved through negotiations. Each party hereby irrevocably attorns and agrees to the exclusive jurisdiction of the courts of Bangalore for any claim related to this Agreement or the Products and agrees not to bring any action, claim, suit or proceeding against the other party, its affiliates or agents (or any officer, director, or employee thereof) other than in such courts;
or b) in Brazil, then this Agreement will be governed by and construed under the Laws of Brazil without giving effect to its conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each party hereby irrevocably attorns and agrees to the exclusive jurisdiction of the courts of Sao Paulo, Brazil for any claim related to this Agreement or the Products and agrees not to bring any action, claim, suit or proceeding against the other party, its affiliates or agents (or any officer, director, or employee thereof) other than in such courts;
or c) in Europe or anywhere else in the world, then this Agreement will be governed by and construed under the Estonian Law without giving effect to its conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any dispute, controversy or claim arising out of or relating to the Agreement shall be resolved through negotiations. If the Parties fail to resolve the disputes relating to this agreement through negotiations, the dispute shall be conclusively resolved in the Arbitration Court of the Chamber of Commerce and Industry of Estonia in accordance with the Rules of the Arbitration Court. Each party hereby irrevocably attorns and agrees to the exclusive jurisdiction of the Arbitration Court of the Chamber of Commerce and Industry of Estonia for any claim related to this Agreement or the Products and agrees not to bring any action, claim, suit or proceeding against the other party, its affiliates or agents (or any officer, director, or employee thereof) other than in such courts.
This Agreement constitutes the entire and exclusive agreement between you and us with respect to the subject matter of this Agreement and cancels and supersedes any prior and contemporaneous understandings and agreements between the parties hereto with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between Licensee and Omnicomm, oral or written other than as expressly set forth in this Agreement and any terms expressly incorporated herein by reference. The headings in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
AMENDMENTS AND WAIVERS
Licensee agree that we may change the terms of this Agreement from time to time by notifying you via our website, email or other means. Licensee agree to accept, and you hereby accept, any changes in Third Party Terms and other terms of this Agreement, unless the changes impose commercially unreasonable disadvantages on you. If a change imposes commercially unreasonable disadvantages on you and we receive a written objection from you within 30 days of the date when you received notice or you should have noticed the change, we may, at our sole option and discretion, (a) reverse such change with the effect that the immediately prior version of this Agreement shall continue to apply to you, or (b) terminate this Agreement and your use of the Products and refund to Licensee any prepaid services fees paid to us for time periods after the effective date of the change to which Licensee objected in accordance with this Agreement. No modification, amendment, addition to or waiver of any rights, obligations or defaults shall be effective unless in writing and signed by the party against whom the same is sought to be enforced. One or more waivers of any right, obligation or default shall be limited to the specific right, obligation or default waived and shall not be construed as a waiver of any subsequent right, obligation or default. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder.
Unless prohibited by applicable law, you shall indemnify and hold harmless Omnicomm, Channel Partners, Suppliers, Resellers, Integrators, Dealers, Distributors, Sub-distributors, Contractors, Successors or Assigns, and their respective directors, officers, shareholders, employees, agents and representatives (each an “indemnified party”), from and against any and all damages, liabilities, costs, losses and expenses (including reasonable legal costs and fees) arising from or related to any claim, demand, complaint or action by a third party arising out of or incident to: (a) your actions or failure to act under or related to this agreement; or (b) your breach of any third party terms incorporated herein by reference.
Each party shall be relieved of their respective obligations hereunder and will not be liable to the other or to any third party if the affected party is unable or fails to perform any of its obligations under this Agreement, as a result of any fire, explosion, war, riot, strike, walk-out, labour dispute, flood, shortage of water, power, transportation facilities or necessary materials or supplies, default or failure of carriers, breakdown in or the loss of production or anticipated production from plant or equipment, act of God or public enemy, act of war or terrorism, any law, act or order of any court, board, government, state-sponsored actor or other authority, or any other cause (whether or not of the same character as the foregoing) beyond the affected party’s reasonable control, for so long as such cause prevents the affected party from so performing, provided however that the other party may terminate this Agreement if the affected party is unable to perform its obligations for a period of 30 days or more, upon written notice to the other during the time the affected party is prevented from so performing.