Omnigo Master Subscription Agreement

Omnigo's public safety, incident reporting, and security management software enables people across many industries and professions to make their worlds more secure. 

The following Master Subscription Agreement is the basis for our relationship with our customers.  We aim for excellence in all we do, transparency in our operation, and fairness in all our relationships. 

1. Definitions

In addition to terms defined elsewhere in this Agreement, the following terms shall have the meanings defined below:

1. “Software” means the software products and associated documentation licensed to Customer as set forth in the Order Form.
2. “User” means Customer’s employees who have been granted access (at one or more computer terminals) to the Software, as well third-party consultants who use the Software on Customer’s behalf and have executed confidentiality agreements with Customer or are otherwise subject to confidentiality obligations that are at least as protective of Omnigo’s Confidential Information as the provisions of this Agreement, and have agreed to abide by all the terms and conditions of this Agreement and the Order Form. Customer agrees that it is responsible to Omnigo for all use of the Software by Users.
3. “Customer Data” means all data that is supplied by or on behalf of Customer to Omnigo in connection with, or for the use of, the Software.
4. “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Software, including any associated documentation, that Omnigo may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version. Maintenance Releases may also modify or delete in their entirety certain features and functionality.
5. “New Version” means any new version of the Software that Omnigo may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Omnigo’s designation of a new version number), and which Omnigo may make available to Customer at an additional cost under a separate written agreement or an amendment to this Agreement.
6. “Order Form” means a document referencing this Agreement that describes the specific Software and/or Solutions to be provided to Customer by Omnigo, applicable pricing, and other transaction-specific provisions that have been agreed upon by Omnigo and Customer.
7. “Initial Term” means the term of the Solutions and/or Software licenses granted under this Agreement beginning on the Effective Date and ending as outlined in the Order Form.
8. “Renewal Term” means the twelve (12) month period commencing on the expiry of the Initial Term and each successive twelve (12) month period thereafter (or such other period as is set out in an Order Form).
9. “Solutions” collectively means the Support Services, Managed Services, Hardware, Custom Developed Services, and other solutions provided by Omnigo that are more specifically outlined in an Order Form and are subject to the terms of this Agreement and the applicable Addendum.
10. "Term” means the Initial Term together with the Renewal Terms, if any.

2. Addenda

In addition to the terms set forth in this Agreement, the terms and conditions outlined in the Addenda selected below shall also apply to the Software and/or Solutions referenced in the applicable Order Form. Select the addenda to be included in this Agreement (those selected, individually, each an “Addendum,” and collectively, “Addenda”) from the following list:

1. Support Services
2. Managed Services
3. Hardware
4. Customer Developed Services

3. Software License Grant

Subject to and conditioned on Customer’s compliance with all of the terms and conditions of this Agreement, including all applicable Addenda, Omnigo grants Customer a limited, non-exclusive, non-sublicensable, and non-transferable license during the Term to use the Software solely for Customer’s internal business purposes. Omnigo reserves all rights not expressly granted to Customer in this Agreement. This is a license, not a sale of the Software or any copy of it, nor is it a waiver of any intellectual property rights of Omnigo. Except for the limited rights and licenses expressly granted under this Agreement, Customer acknowledges and agrees that nothing in this Agreement or the Order Form grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software. All rights not expressly granted herein shall be reserved to Omnigo.

4. Code of Conduct & Restrictions on Use

Customer shall not at any time, directly or indirectly, (a) use the Software (or allow others to do so) for any purpose beyond the scope of the license granted in this Agreement, or (b) use the Solutions in violation of the terms set forth in this Agreement. In particular, without limiting the foregoing, Customer shall not at any time:

1. Copy, modify, or create derivative works of the Software or any Solutions, in whole or in part;
2. Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or any Solutions;
3. Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
4. Engage in any unlawful or illegal use of the Software or any Solutions;
5. Use the Software or any Solutions to engage in any unlawful or illegal activity;
6. Engage in any activity that exploits, harms, or threatens minors;
7. Use or publicly display the Software or any Solutions to share inappropriate content or material (e.g., pornography, graphic violence, etc.);
8. Remove or alter any copyright notices or other proprietary legends or notices from the Software or associated documentation, or any Solutions;
9. Circumvent any restrictions on access to or availability of the Software or any Solutions;
10. Engage in activity that is harmful to Omnigo, the Software, any Solutions, or others (e.g., transmitting viruses, stalking, etc.);
11. Use the Software or any Solutions in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right, or other right of any person;
12. Use the Software or any Solutions to collect, process, or provide to Omnigo any data that Customer does not have the rights to collect, process, or provide; or
13.  Assist others, directly or indirectly, in any of the foregoing activities.

5. Customer Obligations and Warranties

Customer acknowledges and agrees to each of the following:

1. All pricing schedules and pricing terms shall be outlined in the Order Form.
   (i) Customer may only decrease the number of Users or other Solutions outlined in the Order Form at the beginning of the next Term, provided notification is received by Omnigo at least sixty (60) days prior to the expiration of the then-current Term. If notification is not timely received by Omnigo, automatic renewal will occur based on the same number of Users. Customer acknowledges and agrees that any decrease in the number of Users or other factors on which the fees for the Software and Solutions are based will result in a reduction or elimination of any volume discounts or incentive pricing Customer received prior to such decrease.
   (ii) Customer may increase the number of Users, Solutions, or add additional Solutions at any time during the Term. Unless otherwise requested and agreed, pricing for additional recurring Solutions shall be prorated to co-term with existing recurring Solutions so that the Software may be consolidated for future term billings.
2. Customer Hardware. Customer understands: (i) the hardware requirements it must provide for the use of the Software and Solutions; (ii) the Software may not work properly if the minimum hardware specifications are not met; and (iii) hardware specifications may change because of regulatory and/or industry required software changes. Customer shall at all times during the Term set up, maintain, and operate in good repair and in accordance with the hardware specifications all Customer hardware on or through which the Omnigo Software and Solutions are accessed or used; and provide Omnigo personnel with such access to Customer’s premises and Customer hardware as is necessary for Omnigo to exercise its rights and perform its obligations under and in connection with this Agreement.
3. Use of Software. Customer warrants that it will use the Software only to process Customer’s own work and data and shall not process the work of any other entity or person without first obtaining the necessary additional licenses or written consent from Omnigo.
4. Speed of Software. Customer warrants that it will take all reasonable steps to prevent any material degradation of the processing speed available to Users during business hours. Customer understands and accepts that network service, including wired, wireless, cellular, and satellite communication services, is provided by a third-party carrier (or carriers). Omnigo accepts no responsibility or liability for performance issues due to network-related disruption or malfunction.
5. Customer Security. Customer is solely responsible for the security and compliance of the Software as installed or used on Customer or User devices. Customer warrants that it will provide and maintain security practices and software required to maintain reasonable security and compliance of Customer devices that hold or access Customer Data or on which the Software is installed or used, including, without limitation, risk assessment, security practices and policies, device encryption, malware protection, system updates, and any other applicable security measure required by law or regulation, industry standards that are commercially reasonable in the information technology industry, or common best practice.
6. Customer Data Integrity. Customer shall ensure that Customer’s use of all Customer Data is at all times compliant with all applicable local, state, federal and international law, regulations and conventions, including without limitation those related to data privacy, international communications and the exportation of technical or personal Data. Customer is solely responsible for the validity, integrity, accuracy, and completeness of all Customer Data entered into or processed by the Software, or provided by Customer to Omnigo, and Customer agrees that Omnigo may refuse to process any Customer Data that, in Omnigo’s sole discretion: (i) is not of a quality or condition suitable for processing; (ii) does not comply with Omnigo’s applicable standards and procedures; or (iii) is otherwise not in proper machine-readable form. Omnigo shall not be deemed responsible for any transactions or data processing that fails, or legal or regulatory compliance failures, due to the validity, integrity, accuracy, and completeness of the data.
7. Customer Data Consents and Notices. Customer warrants that it has sufficient rights in the Customer Data to authorize Omnigo to host, copy, process, and transmit the Customer Data to provide, maintain, and improve the Software and Solutions during the Term (as further set forth in Section 11), and that the Customer Data and its use hereunder will not violate or infringe the rights of any third party. Customer acknowledges that (i) it is Customer’s sole responsibility to provide all notices and obtain all necessary licenses, consents, and permissions for all data provided by or on behalf of Customer and/or any User to Omnigo for the Omnigo Solutions and/or Software (including all Customer Data); and (ii) it is Customer’s sole responsibility to use the Omnigo Solutions and Software in compliance with applicable laws and regulations.
8. Authority to Sign. Customer warrants that the person signing this Agreement has the requisite authority to act on behalf of Customer, including the specific authority to bind Customer to this Agreement and all its terms and conditions.
9. Non-Solicitation of Omnigo’s Employees and Contractors. Customer agrees that during the Term of this Agreement and for a period of twelve (12) months after termination of this Agreement, it will not recruit or solicit, without Omnigo’s prior written consent, any person then employed or engaged by Omnigo if such person became known to Customer through the relationship established pursuant to this Agreement. This prohibition will not apply to job opportunities posted on recruiting websites or in other publications in which Customer seeks to find candidates for open positions (absent direct solicitation and/or recruitment).

6. Maintenance Release and New Versions

1. During the Term, Omnigo will provide Customer with all Maintenance Releases (including updated associated documentation) that Omnigo may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases provided by Omnigo to Customer are deemed Software and are subject to the terms of this Agreement. Customer agrees that Omnigo does not promise there will be a certain number of Maintenance Releases (or any Maintenance Releases) during a particular year and Omnigo has no obligation to continue to provide or enable any particular features or functionality. Customer will be notified via email or within the Software when Maintenance Releases are available and before any of the aforementioned changes to terms of service or updates to other Omnigo-supplied software and/or hardware take effect. Customer agrees to install Maintenance Releases promptly after receipt from Omnigo.
2. Customer does not have any right under this Agreement to receive any New Versions of the Software that Omnigo may, in its sole discretion, release from time to time. Provided that Customer is in compliance with the terms and conditions of this Agreement, Customer may license any New Version at Omnigo’s then-current list price and subject to a separate Order Form. Omnigo may, in its sole discretion, from time to time, change the terms of service or update other Omnigo-supplied software and/or hardware.

7. Invoicing and Payment

1. Initial Payment and Invoicing. The First Invoice Total (as set forth in the applicable Order Form) is due within thirty (30) days from the invoice date or the Effective Date, whichever is earlier.
2. Annual Fees. Unless otherwise set forth in the applicable Order Form, Omnigo invoices annually for all Software and Solutions. Annual Fees will be billed up to sixty (60) days prior to the anniversary of the Effective Date each year. All fees are due within thirty (30) days from the invoice date. Customer shall make all payments in US dollars.
3. Fee Increases. Following the Initial Term, Omnigo may increase fees by sending Customer written notice of the change not later than thirty (30) days prior to the date such change becomes effective. In addition, Omnigo may increase fees at any time during the Term on an as-needed basis, if Omnigo incurs unforeseen cost increases greater than five percent (5%) to provide the Software or Solutions, by sending Customer written notice of the change not later than thirty (30) days prior to the date such change becomes effective.
4. Delinquent Account. Customer hereby agrees that Omnigo has the right to suspend the Solutions, including the Software, without prior notice to Customer if Customer fails to pay an invoice when due. During the term of any such suspension, all amounts due under this Agreement shall continue to accrue and be due and payable according to this Agreement. Invoices not paid within sixty (60) calendar days of the date of the invoice shall entitle Omnigo to accelerate payment of all future sums due under the Agreement and such fees shall be immediately due and payable; if Customer’s outstanding invoices are not paid in full within ten (10) calendar days thereafter, Omnigo may immediately terminate this Agreement, without incurring any obligation or liability to Customer or any other person by reason of such termination. Customer agrees that it shall be liable to Omnigo for all costs of collection of any delinquency, including collection agency fees, reasonable attorneys’ fees, and court costs.
5. Taxes. Omnigo’s prices are quoted exclusive of all sales, use, or other taxes or similar assessments. Customer is responsible for all taxes, fees, duties, licenses, tariffs, and levies imposed upon the Software or Solutions by any federal, provincial, state, or local government or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Omnigo’s income. Tribal customers may be exempt from taxes as per their agreements with the relevant government authorities. Customers are responsible for providing tax exempt documentation to Omnigo.

8. Audits

1. Audit Procedure. Omnigo or its designee (including its accountants and auditors) may, in Omnigo’s sole discretion, inspect and audit Customer’s use of the Software and the Solutions under this Agreement at any time during the Term and for two (2) years following the termination or earlier expiration of this Agreement to verify Customer’s compliance with this Agreement and the Order Form. Customer shall make available all such books, records, hardware, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of Omnigo with respect to such audit.
2. Cost and Results of Audit. If the audit determines that Customer’s use of the Software exceeded the usage permitted by this Agreement or the applicable Order Form, Customer shall pay to Omnigo all amounts due for such excess use of the Software and/or Solutions, plus interest on such amounts, at a rate of one and a half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. If the audit determines that such excess use equals or exceeds five percent (5%) of Customer’s permitted level of use, Customer shall also pay to Omnigo all costs incurred by Omnigo in conducting the audit and promptly correct any non-compliance. Customer shall make all payments required under this Section 8(b) within fourteen (14) days of the date of written notification of the audit results.

9. Confidential Information

1. During the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information that would be reasonably understood to be confidential, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. Except as otherwise expressly permitted in writing by an authorized representative of the disclosing party, the receiving party agrees that it shall not use the Confidential Information of the disclosing party for any purpose other than the purpose for which the disclosing party disclosed the Confidential Information, or disclose or reveal the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, directors, officers, agents and consultants who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder, and are subject to legally binding obligations of confidentiality no less restrictive than those contained in this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. If a protective order or other remedy is not obtained as outlined in (i) above, or if the disclosing party waives in writing compliance with the terms hereof, then the receiving party shall furnish only that portion of the Confidential Information which the receiving party is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such Confidential Information. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and shall apply during the term of this Agreement and for a period of one (1) year thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the expiration or termination of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
2. Without limiting the foregoing, Customer acknowledges and agrees that the Software and associated documentation contain copyrighted and/or proprietary information of Omnigo and constitute valuable assets and trade secrets of Omnigo. Accordingly, Customer agrees to use the Software only in accordance with the terms and conditions of this Agreement. Customer must implement commercially reasonable procedures to ensure continued confidentiality, security, and protection of the Software and the associated documentation as required hereunder and to prevent unauthorized access thereto or use thereof by any of Customer’s employees or any other entity. The provisions of this paragraph shall survive in perpetuity, notwithstanding any expiration or termination of the license granted hereunder or of this Agreement in whole or in part.

10. Intellectual Property Ownership 

Customer acknowledges that, as between Customer and Omnigo, Omnigo owns, and shall at all times retain sole title to and ownership of, all right, title, and interest, including all intellectual property rights in and to, the Software, in all forms and all copies thereof including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks, and proprietary and confidential information rights associated with the Software except that any portion of the Software that is licensed from a third party shall remain owned by the applicable third party. Customer agrees to respect all applicable intellectual property rights, including patents, trademarks, copyrights, trade secrets, and licenses, pertaining to the Software, hardware, and services provided under this Agreement.

CUSTOMER SHALL INDEMNIFY OMNIGO, ITS AFFILIATES, DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, AND LIABILITY OF EVERY KIND, INCLUDING EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY FEES, FOR DAMAGES TO ANY PERSON OR PROPERTY ARISING IN CONNECTION WITH ANY ALLEGED OR ACTUAL INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS PERTAINING TO CUSTOMER’S USE OF THE SOFTWARE AND SOLUTIONS PROVIDED UNDER THIS AGREEMENT.

11. Customer Data

1. The Omnigo Solutions and Software allow Customer to store or share Customer Data. Omnigo does not claim ownership of Customer Data. Customer Data remains owned by Customer, and Customer is responsible for all Customer Data. The Omnigo Solutions and Software do not replace the need for Customer to maintain business continuity and disaster recovery procedures or redundant data archives. OMNIGO HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA. Customer hereby grants to Omnigo a limited and non-exclusive license to host, copy, process, and transmit Customer Data to provide, maintain, and improve the Software and Solutions during the Term. Notwithstanding the foregoing, Omnigo reserves the right to monitor usage and metrics and collect usage data (i.e., metadata) in any manner set forth in Section 12 below. To the extent necessary or desirable to provide services to Customer and others, to protect Customer and the Solutions, and to improve Solutions, Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Omnigo to enforce this Agreement and exercise Omnigo’s rights and perform Omnigo’s obligations hereunder. If Customer uses the Software and does not use Omnigo’s Managed Services as set forth in Addendum B, then Customer is also solely responsible for regular data backups.
2. Upon Customer’s written request, Omnigo will return to Customer or destroy all Customer Data within a reasonable period of time, provided that Omnigo shall have the right to charge Customer with the cost of returning to Customer or destroying such Customer Data, including, but not limited to, the time incurred by Omnigo at its then-current time and materials rates and reasonable copying, courier, and other delivery expenses. Omnigo may retain Customer Data after the Term if such Customer Data needs to be retained for the purpose of actual or potential litigation or other record-keeping purposes, or is on back-up, archival storage tapes, or the like and is therefore not practical to return or destroy, provided that Omnigo will maintain Customer Data according to this Agreement. Omnigo will have no duty to maintain Customer Data and may destroy Customer Data within thirty (30) days after expiration or termination of this Agreement, unless Customer agrees to pay an annual maintenance fee for Omnigo’s ongoing storage of Customer Data, as set forth in the Support Services Addendum. Customer agrees that Omnigo will not be liable to Customer or any third party for any Customer Data deleted under this Section 11(b).

12. Aggregated and Benchmarking Data

Nothing in this Agreement shall limit Omnigo’s ability to collect, use, and disclose Aggregated Data (defined below) for the purpose of monitoring the performance, operation, or security of the Software or monitoring, enhancing, and creating new services. Customer agrees that Omnigo may collect, use, and disclose data concerning and derived from Customer’s use of the Software and Solutions, including Customer Data, for industry analysis, benchmarking, analytics, marketing, and other business purposes during and after the Term, provided that any such data collected, used, and disclosed for such purposes will be in aggregate form only and will not identify Customer, its Users, or any third parties utilizing the Software Solutions as the source of the data (“Aggregated Data”) and Omnigo complies with all applicable laws in collecting, using, and disclosing such Aggregated Data. Aggregated Data shall not be considered Customer Data or Confidential Information of Customer. Moreover, Customer agrees to allow Omnigo to use Aggregated Data to compile benchmarking and usage data for research and development, including, but not limited to, operational, financial, and statistical data of Customer in order to provide comparative benchmarking services, decision support services, and predictive management services to Omnigo’s customers and prospective customers, and for use in Omnigo’s research and development of the Software. Customer grants Omnigo the right to collect and use such Aggregated Data for all such purposes..

13. Third-Party Apps, Services, or Integrations

Customer acknowledges and agrees that the Solutions may operate with or using applications or services operated or provided by third parties (“Third Party Services”). Omnigo is not responsible for the operation of such Third Party Services nor the availability or operation of the Solution to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Omnigo does not make any representations or warranties with respect to Third Party Services. Any exchange of data or other interaction between Customer and Third Party Services is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

14. Limited Warranty

1. Omnigo warrants for a period of ninety (90) days after Customer initially receives the Software (the “Warranty Period”) that the Software will perform under normal use substantially as described in the associated documentation. Customer’s exclusive remedy and Omnigo’s sole liability for Software that does not meet the warranty set forth in this Section 14 shall be at Omnigo’s sole option and expense to repair or replace the non-conforming Software, provided, however that Customer promptly notifies Omnigo of the deficiency in writing within the applicable Warranty Period when the problem first occurs, and the Software has been demonstrated to be defective. Omnigo does not guarantee that all errors will be corrected.
2. The warranties set forth in Section 14(a) do not apply and become null and void if Customer breaches any provision of this Agreement, or if Customer, any User, or any other person granted access to the Software by Customer, whether or not in violation of this Agreement: (i) installs or uses the Software on or in connection with any hardware or software not specified in the associated documentation or expressly authorized by Omnigo in writing; (ii) modifies or damages the Software; (iii) misuses the Software, including any use of the Software other than as specified in the associated documentation or expressly authorized by Omnigo in writing; or (iv) uses of any version of the Software other than the most current version or fails to promptly install any Maintenance Release or replacement of the Software made available to Customer by Omnigo.
3. OMNIGO DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 14(a), THE SOFTWARE AND ASSOCIATED DOCUMENTATION AND ANY SOLUTIONS ARE PROVIDED TO CUSTOMER “AS IS” AND OMNIGO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. OMNIGO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 14(a), OMNIGO MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND ASSOCIATED DOCUMENTATION AND ANY SOLUTIONS, OR ANY HARDWARE OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE

15. Indemnification by Customer

Customer shall indemnify, hold harmless, and, at Omnigo’s option, defend Omnigo, its affiliates, agents, directors, officers, and employees from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) based upon or arising out of Customer’s, or any User’s: (a) gross negligence, fraud, or willful misconduct; (b) use of the Software or associated documentation in a manner not authorized or contemplated by this Agreement; or (c) breach of any of the representations and warranties made by Customer in Section 5, provided that Customer may not enter into any settlement binding upon Omnigo without Omnigo’s consent, which shall not be unreasonably withheld. Omnigo shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

16. Indemnification by Omnigo

Omnigo will defend and indemnify, at its expense, any claim made against Customer by a third party based on an allegation that the Software infringes or misappropriates any United States patent, copyright, or trademark (“IP Claim”); provided, that Customer (a) has not materially breached the terms of this Agreement, (b) notifies Omnigo in writing promptly after Customer first learns of the IP Claim; and (c) reasonably cooperates in the defense of the IP Claim. Omnigo shall have sole control over such defense. If an IP Claim is made, Omnigo may modify the Software to be non-infringing, but still substantially similar to the current Software, or obtain for Customer a license to continue using the Software. If Omnigo determines it is not commercially reasonable or technically possible to perform either of the above options, then Omnigo may at its option elect to terminate this Agreement and refund to Customer the fees paid to Omnigo by Customer for the Software for the unused portion of the then current Term. Upon any such termination, Customer shall cease use of the Software. Omnigo shall have no indemnification obligations under this Section 16, if the alleged infringement arises from: (i) Omnigo’s compliance with specifications or instructions prescribed by Customer; (ii) modification of the Software by Customer; (iii) use of the Software in combination with other software not provided by Omnigo and which use is not specifically described in the associated documentation, or (iv) use of the Software that does not include all Maintenance Releases made available to Customer by Omnigo if such Maintenance Release is necessary to avoid infringement. THIS SECTION 16 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND OMNIGO’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 16 (INDEMNIFICATION BY OMNIGO), OMNIGO SHALL NOT HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY CUSTOMER FOR THIRD PARTY CLAIMS.

17. Limitation of Liability

1. Limitation on Types of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL OMNIGO BE LIABLE TO CUSTOMER OR ANY THIRD PARTY CLAIMING THROUGH A PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOST OR DAMAGED DATA, INVESTMENTS MADE, AND LOSS OF BUSINESS OPPORTUNITY OR INTERRUPTION) THAT CUSTOMER MAY INCUR OR EXPERIENCE UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY ORDER FORM, OR THE SOFTWARE, OR SOLUTIONS, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE, AND STRICT LIABILITY) EVEN IF (i) OMNIGO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, (ii) DIRECT DAMAGES DO NOT SATISFY A REMEDY, OR (iii) A LIMITED REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
2. Limitation on the Amount of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OMNIGO’S ENTIRE LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, AN ORDER FORM, THE SOFTWARE, OR SERVICES, REGARDLESS OF THE NATURE OF THE OBLIGATION, FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, NEGLIGENCE, AND STRICT LIABILITY), IN ALL CASES SHALL BE LIMITED TO, AND SHALL NOT EXCEED, IN THE AGGREGATE, FEES PAID TO OMNIGO UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY FOR THE SOFTWARE OR SOLUTIONS THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND UNDER THE APPLICABLE ORDER FORM.
3. Allocation of Risk. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 17 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CUSTOMER FOR THE SOFTWARE AND/OR SOLUTIONS WOULD HAVE BEEN HIGHER.
4. No action, regardless of form, arising out of the transactions under this Agreement may be brought by either party against the other more than two (2) years after the cause of action has accrued, except for actions related to unpaid fees.

18. Termination

1. Default in Performance or Breach. Except as otherwise provided in this Agreement, if either party defaults in the performance of or breaches any duty, or the payment of any amount due, under this Agreement, and such default or breach is incapable of cure or, being capable of cure, remains uncured thirty (30) days after written notice of default or breach given by the other party (other than Customer’s breach of Sections 3 or 4 as specified below), the non-defaulting/non-breaching party may terminate this Agreement by giving written notice of termination. This Agreement will be terminated ten (10) days after such notice of termination. If Customer breaches Sections 3 or 4 of this Agreement, Omnigo may terminate this Agreement or any license to Software granted under this Agreement effective upon notice to Customer.
2. Bankruptcy or Insolvency. Either party shall have the right to terminate this Agreement by giving written notice of termination to the other in the event of the insolvency or bankruptcy of such other, whether voluntary or involuntary, or the appointment of a trustee, receiver, or similar agent to take charge of or sell any material portion of such other’s property or business.
3. Cancellation. Requests to cancel Software and/or Solutions must be submitted in writing by visiting www.omnigo.com/cancel. Cancellations received during the Term do not relieve Customer of payment obligations or warrant refund of fees paid for Software or Solutions for the remainder of the Term. Cancellations must be received at least sixty (60) days prior to the expiration of the then-current Term to avoid automatic renewal.
4.  Effects of Expiration or Termination.

1.  Amounts Due. If an Order Form provides for ongoing payments during the Term, or Customer has not paid all fees due and Customer cancels prior to the end of such Term, Customer agrees to pay the full amount that has or would have become due during such Term, and such payment shall be due in full upon termination.
2. Termination of License. Upon expiration or termination of this Agreement, the license granted in Section 3 shall automatically terminate and Customer shall immediately cease use of the Software and either return all Software to Omnigo or, under Omnigo’s supervision, destroy all copies of the Software (including documentation, manuals, and accompanying materials) in Customer’s possession.
3. Omnigo’s Confidential Information. Upon expiration or termination of this Agreement, Customer shall promptly return to Omnigo all copies, whether in written, electronic, or other form or media, of Omnigo’s Confidential Information, or destroy all such copies and certify in writing to Omnigo that such Confidential Information has been destroyed.

19. Insurance

Customer shall, throughout the Term, obtain and maintain at its own cost and expense, commercial general liability insurance, professional liability insurance, and workers compensation and employers’ liability insurance policies, from a qualified insurance company licensed to do business in the locations in which Customer does business. At a minimum, the insurance policies will name Omnigo, and its officers, directors, employees, agents, and shareholders, as an additional insured, and will provide Omnigo with at least thirty (30) days’ notice from the insurer by registered or certified mail, if, at any time, the policies will be modified, cancelled, or terminated. Such policies shall provide protection against all claims, demands, and causes of action arising out of any defects or failure to perform, alleged or otherwise, of the Software, any Solutions, or any material used in connection therewith or any use thereof, including any injury or death to any person or damage to property caused by any of the foregoing. The amount of coverage shall be in an amount of at least one (1) million dollars (US $1,000,000.00) per occurrence and at least two (2) million dollars (US $2,000,000.00) in aggregate coverage. These coverages are minimum required amounts and Customer shall carry higher amounts if it is commercially reasonable to do so. Customer also agrees to furnish Omnigo certificates of insurance evidencing same at Omnigo’s request. In addition to the insurance coverages listed in this Section 19, Customer shall also carry any other coverages which are consistent with commercially reasonable practices

20. General Provisions

1. The following general provisions apply to this Agreement:
   a. Integration. This Agreement, together with any other documents incorporated herein by reference and all Addenda, constitutes the sole and entire agreement of the parties. It is the complete and exclusive expression of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Addenda, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Addenda; (ii) second, the Addenda to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference, including any exhibits, schedules, attachments, and appendices to this Agreement.
2. Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be given to the parties at their address above, or at such other addresses as each shall notify the other in writing. All notices, requests, demands, and other communications under this Agreement shall be in writing, shall be served by hand delivery, overnight courier, or email, and shall be deemed given upon the date of receipt. Notices relating to Software maintenance, Software issues, and Software service suspension may be published or posted by Omnigo over its service.
3. Force Majeure. In no event shall Omnigo be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Omnigo’s reasonable control, including, but not limited to, acts of God, epidemic, pandemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, data security incidents (including ransomware or other malware), labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. Omnigo shall use reasonable efforts to mitigate the extent of the aforementioned excusable delay or failure and their adverse consequences.
4. Assignment, Transfer, & Sublicensing. Customer may not sell, assign, transfer, give, or sub-license in any manner, by operation of law or otherwise, any licenses granted hereunder or all or a portion of the Software, the benefits of, or obligations under, this Agreement without the prior written consent of Omnigo. Omnigo may assign this Agreement, in whole or in part, at its discretion. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder
5. Binding Effect. This Agreement shall be binding upon the parties, their heirs, legal representatives, affiliates, and permitted successors and assigns.
6. Applicable Law. This Agreement shall be governed by and interpreted in accordance with the law of the State of Missouri without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction except if the State of Missouri adopts the Uniform Computer Information Transactions Act drafted by the National Conference of Commissioners of Uniform State Laws as revised or amended as of June 30, 2002 (“UCITA”) which is specifically excluded. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
7. Venue. The parties agree that any legal suit, action, or proceeding arising out of or related to this Agreement shall be brought exclusively in a state or federal court serving St. Louis County, Missouri, and the parties irrevocably submit to the exclusive jurisdiction of such court in any such suit, action, or proceeding.
8. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 4, would cause the other party irreparable harm for which monetary damages alone would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
9. Amendments. No amendment or modification of this Agreement shall be valid or binding upon the parties unless it is made in writing and signed by each of the parties.
10. Non-Waiver. No failure or delay in exercising any right under this Agreement by either party will operate as a waiver of that any right, nor shall any partial exercise of any right preclude further exercise of the right.
11. Severability. If any term or provision of this Agreement is adjudged by a court of competent jurisdiction to be invalid, illegal, or unenforceable under the laws of any state or the United States, the unaffected portions of this Agreement shall be unimpaired and remain in full force and effect. In the event of such a ruling, the parties shall negotiate in good faith a substitute for the provision declared invalid, illegal, or unenforceable.
12. Export Regulation. The Software and/or Solutions may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software or Solutions to, or make the Software or Solutions accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Solutions available outside the US.
13. US Government Rights. Each of the Software and the associated documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefore, Customer only receives those rights with respect to the Software and documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
14. Execution in Counterparts. This Agreement may be signed in counterparts, each of which is deemed an original, and all of which together are deemed a single instrument when signed by both parties.
15. No Agency. This Agreement does not create any agency relationship between the parties.
16. Attorney Fees. The prevailing party in any litigation concerning this Agreement will be entitled to reasonable attorney’s fees and court costs, in addition to any other relief to which that party may be entitled.
17. Publicity. Nothing contained in this Agreement shall be interpreted so as to prevent Omnigo from publicizing its business relationship with Customer or the nature of the Software or Solutions sold to or performed for Customer.
18. No Third Party Beneficiaries. This Agreement does not and is not intended to confer any enforceable rights or remedies upon any person or parties other than the parties hereto.
19. Construction. The paragraph headings in this Agreement are for convenience only, do not constitute a part of this Agreement, and shall not affect its interpretation. The terms of this Agreement are to be construed as singular, plural, masculine, feminine, or neuter, as context requires.
    CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS THE AGREEMENT AND ADDENDA, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS.