Terms of Service

2.1 Access to the Services

Subject to the terms and conditions of this Agreement and your payment of all applicable fees, we grant you a limited-term, non-exclusive, non-sublicensable, non-transferable (except as expressly permitted herein) right to access and use the Services specified in your Order(s) solely for your internal business purposes.

2.2 Subscriptions

Unless otherwise noted on an Order, Services are purchased as time-based subscriptions. We reserve the right to monitor your use of the Services to effect this Agreement and/or verify compliance with any subscription limits and this Agreement.

2.3 Your Responsibilities

You are responsible for:

• (i) the confidentiality of User access credentials that are in your possession or control;
• (ii) setting up appropriate internal roles, permissions, policies, and procedures for the safe and secure use of the Services;
• (iii) the activity of your Users in the Services; and
• (iv) your Users' compliance with this Agreement and the Documentation.

You must notify us promptlyif you become aware, or reasonably suspect, that your account's security has been compromised.

2.4 Restrictions

Except as expressly authorized by us prior to each instance, you shall not:

• (i) provide the Services to any third party other than your Users, use the Services as a service bureau, or otherwise violate or circumvent any use limitations or restrictions set forth in an Order, the Service, or the Documentation;
• (ii) derive the source code or use tools to observe the internal operation of, or scan, probe, or penetrate, the Services;
• (iii) copy, modify, or make derivative works of the Services;
• (iv) remove any proprietary markings or notices from any materials provided to you by us;
• (v) frame or mirror the Services or any part thereof; or
• (vi) use the Services: (a) to send spam, duplicative, or unsolicited messages in violation of applicable laws; (b) to store sensitive data such as bank account data, social security numbers, and credit card data outside of the designated fields therefor; (c) to send or store material that violates the rights of a third party; (d) to send or store material containing viruses, worms, Trojan horses, or other harmful computer code; or (e) for any other illegal or unlawful purpose.

You may not knowingly facilitate or aid a third party in any of the foregoing activities.

3.1 Availability

We will use commercially reasonable efforts to maintain availability of the Services 24 hours a day, 7 days per week, subject to planned maintenance, Force Majeure events, and the terms of this Agreement. We will endeavor to schedule planned maintenance affecting the availability of the Services at non-peak times, and you will receive reasonable advance notice of such planned maintenance. We will use commercially reasonable efforts to notify you as soon as reasonably practical of any unplanned downtime of the Services and resolve the issue as soon as practical.

3.2 Changes

In the event that your use of the Services interferes with or disrupts the integrity, security, availability, or performance of the Services, we may modify or temporarily restrict or suspend your use of the Services. The parties will cooperate in good faith to resolve the issue as soon as reasonably possible.

3.3 Technical Support

Your Users will receive technical support for the Services and/or upgraded support in accordance with the terms of the Order. Technical support may, at our discretion, include online help, FAQs, training guides and templates, and the use of email, chat, or live help. We are not obligated to maintain or support any customization to the Services or any Third-Party Service, even if sold by us, except under a separate agreement signed by the parties.

3.4 Professional Services

We may also provide professional services, such as implementation, training, customization, or consulting. Any such services are outside the scope of the Services and require a Statement of Work or a separate written agreement between the parties.

4.1 Fees

You shall pay us the fees as set forth on the Order. Fees are in the currency specified on the Order. If you exceed any volume limitations set forth on the Order, then we shall invoice you for such additional volume at the overage rates set forth on the Order (or if no overage rates are set forth on the Order, at our then-current standard overage rates for such volume), in each case on a pro-rated basis for the first date of such excess volume through the end of the subscription term.

From time to time, we may increase the price for our Services. You will be notified at least 30 days in advance before we apply any price increase to your Services subscriptions. Unless otherwise set forth in an Order, such changes will not affect the prices for Services during the then-current subscription term and will become effective upon your next renewal term.

4.2 Add-Ons

If, during a then-current subscription term, you add new subscriptions to Services that you are not already subscribed to, such Services will be billed at a prorated amount at the then-current list price.

4.3 Billing and Contact Information

You agree to provide us with complete and accurate billing and contact information, including a specific technical contact if applicable, for your account with us and shall promptly notify us of any change thereto.

4.4 Taxes

All fees are exclusive of all applicable taxes, levies, and duties, and you shall be responsible for their payment, excluding taxes on our net income. If we are obligated to collect applicable taxes, we will include them on our invoice to you, and you will pay all such amounts to us unless you timely provide us with a valid tax exemption certificate.

4.5 Late Payment; Non-Payment

If we do not receive any fees you owe us by the due date specified on your Order, those fees shall accrue interest at the lower of 1.5% per month or the maximum rate permitted by law. Non-payment of any fees for the Services is a material breach of this Agreement.

5.1 Services

Subject to the limited rights expressly granted hereunder, as between the parties Omni Inventory shall own all rights, title, and interest, including all Intellectual Property Rights, in and to the Services (including any configurations and customizations thereof), Omni Inventory Data, and the results of consulting and other professional services performed by Omni Inventory or on its behalf. All rights not expressly granted in this Agreement are reserved by Omni Inventory.

5.2 Customer Data

Subject to the limited rights expressly granted hereunder, as between the parties you own all rights, title, and interest, including all Intellectual Property Rights, in and to Customer Data. You grant Omni Inventory and its subcontractors a worldwide, royalty-free, non-exclusive license to host, copy, transmit, display, and use the Customer Data to provide, administer, and ensure the proper operation of the Services and related systems and to perform our rights and obligations under this Agreement.

5.3 Feedback

You may, but are not required to, provide Omni Inventory or its Resellers or subcontractors with ideas, suggestions, requests, recommendations, or feedback about the Services ("Feedback"). If you do so, you grant Omni Inventory a non-exclusive, worldwide, perpetual, irrevocable license to use, reproduce, incorporate, disclose, and sublicense the Feedback for any purpose.

5.4 Data Analytics; Product Development

Omni Inventory may collect data resulting from Users' use of the Services, such as metadata, performance metrics, and usage trends or volume ("Usage Data"). Omni Inventory may use Usage Data for its legitimate business purposes, provided that, except to provide the Services, to assist with the administration of Third-Party Services subscribed by you, or as required by law, any external disclosure or use of Usage Data by Omni Inventory will be in an aggregated form that does not identify or otherwise permit the identification of you, any Users, or other persons, unless you consent otherwise or initiate the sharing of Usage Data yourself.

6.1 Confidential Information

"Confidential Information" means all information of a party or its Affiliates ("Discloser") disclosed to the other party or its Affiliates ("Recipient"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Services and Omni Inventory Data are our Confidential Information. Customer Data is your Confidential Information.

6.2 Exceptions

Confidential Information excludes:

• (i) information that was known to the Recipient without a confidentiality restriction prior to its disclosure by the Discloser;
• (ii) information that was or becomes publicly known through no wrongful act of the Recipient;
• (iii) information that the Recipient rightfully received from a third party authorized to make such disclosure without restriction;
• (iv) information that has been independently developed by the Recipient without use of the Discloser's Confidential Information; and
• (v) information that was authorized for release in writing by the Discloser.

6.3 Confidentiality Obligations

The Recipient will use the same degree of care and resources as it uses for its own confidential information of like nature (but no less than reasonable care) to protect the Discloser's Confidential Information from any use or disclosure not permitted by this Agreement or authorized by the Discloser. Recipient shall be responsible for any breach of this section by its employees, Affiliates, and service providers.

6.4 Disclosure Required by Law

The Recipient may disclose Confidential Information to the extent required by court or administrative order or law, provided that the Recipient provides advance notice thereof(unless requested or ordered not to do so by law enforcement or a court) and reasonable assistance, at the Discloser's cost, to enable the Discloser to seek a protective order or otherwise prevent or limit such disclosure.

6.5 Injunctive Relief

A breach of the Recipient's confidentiality obligations may cause irreparable damage, which money cannot satisfactorily remedy, and therefore the Discloser may seek injunctive relief for any threatened or actual breach of section 6.3 without the need to prove damages or post a bond or other surety.

6.6 Data Security

We will maintain and enforce an information security program for the protection of Customer Data, including commercially reasonable administrative, physical, and technical measures designed to:

• (i) protect the confidentiality, availability, and integrity of Customer Data;
• (ii) restore the availability of Customer Data in a timely manner in the event of a physical or technical incident; and
• (iii) ensure the proper disposal and destruction of Customer Data.

We will notify you, as required by applicable law, of any actual or reasonably suspected breach of security known to us that has resulted in, or creates a reasonable risk of, unauthorized access to Customer Data without undue delay.

6.7 Non-Omni Inventory Equipment

The Services are provided over the internet via networks only part of which are within our control. Our obligations in section 6.6 apply only to networks and equipment within our control, and we are not responsible for any delay, loss, interception, or alteration of Customer Data on a network or infrastructure outside of our control.

7.1 No Endorsement or Warranty

We may present to you, including on our websites, Third-Party Services. We do not endorse or make any representation, warranty, or promise regarding, and do not assume any responsibility for, any such Third-Party Service or a Third-Party Provider, regardless of whether it is described as "authorized," "certified," "recommended," or the like and regardless of whether the Third-Party Service is included in your Order.

You should review applicable terms and policies, including privacy and data gathering practices, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with a Third-Party Provider.

7.2 Data Sharing

If you obtain a Third-Party Service that requires access to or transfer of Customer Data, you acknowledge that any such access or transfer is between you and the Third-Party Provider pursuant to the Third-Party Provider's own privacy notices and policies, and that we are authorized to provide the Customer Data as requested by the Third-Party Service. We are not responsible for any modification, loss, damage, or deletion of Customer Data by any Third-Party Service obtained by you.

8.1 Term

All Services subscriptions specified in your initial Order will run for the subscription period set forth therein. If you add subscriptions after the beginning of a subscription period, their initial term will be the remainder of the then-current subscription period, unless otherwise set forth in the Order.

All subscriptions will automatically renew for additional subscription periods of one year (or for such different renewal term as set forth in the renewal Order), unless either party gives the other party notice of non-renewal at least 30 days prior to the end of the relevant subscription period.

8.2 Termination

Either party may terminate the Agreement:

• (i) by sending a notice of non-renewal as provided above;
• (ii) if the other party has materially breached this Agreement, upon written notice to the breaching party of the breach and, if such breach is curable, an opportunity to cure of at least 30 days; or
• (iii) upon written notice to the other party if the other party becomes the subject of a petition in bankruptcy or another proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

If you materially breach this agreement, we may, without limitation of other rights and remedies, temporarily suspend or terminate your access to the Services or withhold further performance of our obligations under this Agreement.

8.3 Effect of Termination

On expiration or termination of this Agreement:

• (i) all applicable User licenses and other rights granted to you will immediately terminate;
• (ii) a party's rights, remedies, obligations (including payment obligations), and liabilities that have accrued up to the date of termination shall not be affected;
• (iii) unless you have terminated the Agreement for our material breach as provided above, we will not be obligated to refund any prepaid and unused fees; and
• (iv) subject to section 8.5, Recipient shall, at the request of Discloser, delete or destroy Discloser's Confidential Information in its possession or control.

8.4 Survival

Sections 1, 5, 6, 8, 10, 11, and 12 will survive any expiration or termination of the Agreement.

8.5 Access to Customer Data

Customer Data may be exported at any time during the term of this Agreement. We will not delete Customer Data from our production environment for up to 90 days after termination or expiration of the Agreement and may assist you with exporting Customer Data during such period at our standard hourly consulting rate. After that 90-day period, we will have the right to delete all Customer Data and will have no further obligation to make it available to you.

9.1 Authority

Each party represents to the other that it has the authority to enter into this Agreement, to carry out its obligations under it, and to give the rights and licenses granted herein.

9.2 Our Warranties

We warrant that:

• (i) the Services will perform materially in accordance with the Documentation;
• (ii) we will not decrease the material functionality of the Services during a current subscription term; and
• (iii) we will perform any professional services in a workmanlike manner and in accordance with industry standards.

9.3 Remedies

If you notify us in writing that the Services and/or our professional services do not conform with any of the warranties in section 9.2, we will use commercially reasonable efforts to investigate and correct any such non-conformance promptly. Subject to your right to terminate this Agreement for cause, this section 9.3 constitutes your sole and exclusive remedy for breach of the warranties in section 9.2.

10.1 Our Indemnification

Subject to section 10.3, we will indemnify and hold you and your Affiliates, officers, directors, employees, and agents harmless from and against any and all costs, damages, losses, liabilities, and expenses, including reasonable attorneys' fees and costs (collectively, "Damages") to the extent arising out of a third-party claim alleging that the Services infringe or misappropriate the Intellectual Property Rights of a third party, except to the extent that the alleged infringement is based on: (a) a customization or modification of the Services at your direction or by anyone other than us; (b) use of the Services in combination with any service, software, hardware, network, or system not supplied by us; or (c) use of the Services in a manner contrary to our written instructions or the Documentation.

10.2 Indemnification by You

Subject to section 10.3, you will indemnify and hold us and our Affiliates, officers, directors, employees, and agents harmless from and against any and all Damages to the extent arising out of a third-party claim alleging that your collection or use of Customer Data or your use of the Services in breach of this Agreement infringes the rights of, or has caused harm to, a third party, or violates applicable law.

10.3 Indemnification Procedure

In the event of a potential indemnity obligation under this section, the indemnified party shall provide to the indemnifying party:

• (i) prompt written noticeof the claim or a known threatened claim, such that the indemnifying party's ability to defend the claim is not prejudiced; and
• (ii) control of, and reasonable assistancein, the defense and settlement of the claim, at the indemnifying party's expense.

10.4 Exclusive Remedy

The indemnification obligations set forth above represent the sole and exclusive liability of the indemnifying party and the exclusive remedy of the indemnified party for any third-party claim described in this section.

12.1 Compliance with Laws

Each party shall comply with all applicable laws and regulations in relation to the Services, including applicable sanctions, anti-bribery, anti-corruption, and tax evasion laws. You shall not permit Users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. or EU export law or regulation; the current list of restricted territories includes Cuba, Iran, North Korea, Sudan, Syria, and the territory of Crimea/Sevastopol.

12.2 U.S. Government Users

The Services and our Confidential Information are commercial items. If they are being used by or on behalf of the U.S. Government, then the U.S. Government's rights in them will be only those specified in this Agreement, consistent with FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable.

12.3 Unfair Competition

You may not use the Services or any materials provided by us to build a competitive product or service or to benchmark with a non-Omni Inventory product or service.

12.4 Assignment

Neither party may assign any rights or obligations under this Agreement without the other party's prior written consent, except that a party may assign the Agreement in its entirety in connection with a merger, acquisition, spin-off, corporate reorganization or restructuring, or sale of substantially all of its assets. Any attempted assignment in breach of this Agreement shall be void.

12.5 Remedies Not Exclusive

Except as expressly set forth herein, any remedy in this Agreement is not exclusive of any other available remedy.

12.6 Third Party Beneficiaries

Certain of the Services may be provided by our Affiliates. In such case, each such Affiliate shall be a third-party beneficiary of this Agreement to the extent of such Services. Except as expressly set out in this Agreement, a person who is not a party to this Agreement will have no rights to enforce it.

12.7 Entire Agreement

This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous written and oral agreements, negotiations, and discussions between the parties regarding the subject matter herein.

12.8 Severability

If any provision of this Agreement is held to be invalid, illegal, or unenforceable, then to the extent possible such provision shall be construed to reflect the intent of the original provision, with all other provisions in this Agreement remaining in full force and effect.

12.9 No Partnership or Agency

Each party is an independent contractor, and neither party has any authority to act on behalf of the other. Neither party will represent itself as agent, servant, franchisee, joint venture, or legal partner of the other.

12.10 Waiver

A party's failure or delay to exercise any right under this Agreement will not act as a waiver of such right. Rights may only be waived in writing signed by the waiving party.

12.11 Force Majeure

Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent performance of any obligations under the Agreement is delayed or prevented by a Force Majeure event.

12.12 Order of Precedence

In the event of any express conflict or inconsistency, the order of precedence shall be:

• (i) your Order;
• (ii) these terms (including any annexes or exhibits hereto); and
• (iii) the Documentation.

12.13 Updates

From time to time, we may amend these terms. We will notify you of any material changes by promptly sending an email or posting a notice in the Services. By continuing to access or use the Services after such notice, you are indicating that you agree to be bound by the modified terms.

12.14 No Publicity

Neither party shall make any public statement about this Agreement or the relationship of the parties governed by this Agreement that identifies the other party without the other party's prior written consent, except that while you are a customer, Omni Inventory may use your name and logo in its customer list in a manner that does not suggest endorsement.

12.15 Governing Law; Dispute Resolution

The validity, construction, and application of the Agreement will be governed by the internal laws of the State of Delaware, excluding its conflict of laws provisions. The parties agree to resolve all disputes related to this Agreement by binding individual arbitration before one arbitrator and will not bring or participate in any representative action. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures.

12.16 Notices

Except as otherwise specified in this Agreement, any notice required under this Agreement will be in writing and sent by pre-paid mail, courier service, or email to the contact address or email last provided in writing to the notifying party by the notified party.

12.17 Interpretation

Headings are for convenience only and may not be used in interpretation. The words "such as" and "including" do not signify limitation. The Agreement shall not be interpreted against the drafter.

12.18 Special Product Terms

Certain Services or modules may be governed by additional terms. When agreed by you, such terms will become part of this Agreement.

12.19 Language

The parties have expressly requested and require that this Agreement be drawn up in the English language.