1. WELCOME TO OMATIC.
1.1 Overview. We are delighted to have you as a client and look forward to sharing and collaborating on our services. The following terms and conditions (“Terms and Conditions”) provide for terms that are common to this Agreement, including all Agreements to Purchase, SOS and Schedules, and sets forth the general terms and conditions that govern your access to and use of our Services. Please contact Omatic if you have any questions about this Agreement.
1.2 Ordering Procedures. Omatic will provide Client access to Omatic’s Software Products and deliver the Professional Services detailed in the applicable Agreement(s) to Purchase. These Terms and Conditions, applicable Agreement(s) to Purchase, and any other agreements or documentation incorporated herein or therein by reference form the “Agreement,” which constitutes the complete and entire agreement, and supersedes all other agreements, between Omatic and Client concerning the subject matter of this Agreement. In the event of a conflict between these Terms and Conditions, an Agreement to Purchase, or any other additional terms, the following order of precedence shall apply: (1) Agreement to Purchase; (2) these Terms and Conditions; (3) an SOS, and then (4) other additional terms, unless explicitly identified in this Agreement.
2. SERVICES GENERALLY.
2.1 General. All services provided by Omatic Software LLC (“Omatic”) under this Agreement (“Services”), including the Software Products and any Professional Services, will be provided to Client according to these Terms and Conditions, the Agreement(s) to Purchase, and all schedules, exhibits, or other attachments made a part of this Agreement.
2.2 Services Delivery. Except as otherwise set forth on an applicable Agreement to Purchase, Omatic may provide the Services from any facility and may from time to time transfer any or all of the Services being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing those Services.
3. SOFTWARE SERVICES; LICENSED SOFTWARE.
3.1 Overview. Omatic may make available to Client, to the extent specified in an Agreement to Purchase: (1) software made available via the Internet on a software-as-a-service basis (i.e. Software Services), and/or (2) software distributed in object code or other code form (i.e. Licensed Software). Software Services and Licensed Software (each as further defined below) are collectively referred to herein as the “Software Products.” “Documentation” means applicable manuals and documentation that Omatic generally provides or makes available for Software Products.
3.2 Software Services. During the term of the corresponding Agreement to Purchase and subject to Client’s compliance with this Agreement, Omatic will provide Client and its authorized employees (“End Users”) with access to the software products and related services and Documentation provided by Omatic via a web browser (or mobile application) and identified on the applicable Agreement to Purchase (“Software Services”). During the term of the corresponding Agreement to Purchase and subject to Client’s compliance with this Agreement, Omatic grants Client non-exclusive, nontransferable, non-assignable, and limited right to allow End Users to remotely access the Software Services for Client’s internal business purposes in accordance with the terms of this Agreement and the corresponding Documentation.
3.3 Licensed Software. During the term of the corresponding Agreement to Purchase and subject to Client’s compliance with this Agreement, Omatic hereby grants Client a non-exclusive, nontransferable, non-assignable, and limited license to use the Licensed Software for Client’s internal business purposes in accordance with the terms of this Agreement and the corresponding Documentation. “Licensed Software” means the software identified on an Agreement to Purchase that is identified as such and/or is otherwise made available via electronic download to be locally installed on Client’s and its End Users’ devices or hosted by a third party for the benefit of Client as authorized by Omatic (e.g. plug-ins to partner software hosted by an Omatic partner for the benefit of the Client).
3.4 Delivery. With regard to the Licensed Software, Omatic shall deliver to Client via electronic download a number of copies of the Licensed Software reasonably determined by Omatic. With regard to Software Services, Omatic shall provide Client access to the Software Services remotely over the Internet. With respect to Licensed Software, Client will install all updates, upgrades, releases or other adaptations or modifications that Omatic may provide to Client from time to time as soon as practicable after receipt.
3.5 Restrictions. Client shall not lease, license, sell, sublicense or otherwise transfer its access to or use of the Software Products. The Software Products may only be used by Client and End Users (and only to the extent authorized by an Agreement to Purchase). In addition, Client shall not modify, create derivative works of, or attempt to decipher, decompile, disassemble or reverse engineer the Software Products. Nothing in this Agreement confers upon either party any right to use the other party’s Marks, except in Omatic’s performance of the Services. All use of such Marks by either party will inure to the benefit of the owner of such Marks, use of which will be subject to specifications controlled by the owner.
3.6 Suspension; Acceptable Use Policy. Omatic may suspend access to any Services upon written notice if Client fails to pay fees when due, violates this Agreement, or violates Omatic’s Acceptable Use Policy {available at https://omaticsoftware.com/acceptable-use-policy } (“AUP”). Suspensions are rare and exercised in a manner proportionate to the severity of the violation. Omatic agrees to work with Client in good faith to address any violations in a commercially reasonable manner, to prevent similar violations, and to reinstate the affected Services as quickly as commercially reasonably possible.
4. PROFESSIONAL SERVICES.
4.1 Professional Services. Omatic may provide integration, implementation, or other professional services (each to the extent identified in an SOS, “Professional Services”) and Deliverables to Client as set forth in a “Scope of Services” or similar statement of work for Professional Services (“SOS”). “Deliverables” means all materials and information that are delivered to Client by or on behalf of Omatic as a part of the Professional Services, together with any items identified as such in an SOS.
4.2 Change Orders. If either party wishes to change the scope or performance of the Professional Services, it shall submit details of the requested change to the other in writing. Omatic shall, within a reasonable time after such request, provide a written estimate to Client of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Professional Services arising from the change; (c) the likely effect of the change on the Professional Services; and (d) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate in good faith the terms of such change (if and when mutually agreed in writing, a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.
5. FEES AND PAYMENT TERMS.
5.1 Services Fee; Invoices. For the Services provided under this Agreement, Client will pay Omatic the fees in the amounts set forth on the applicable Agreement to Purchase. Unless otherwise set forth on the applicable Agreement to Purchase, applicable fees will be invoiced to Client annually in advance and payable (i) immediately upon invoice if Client’s payment method is on file with Omatic, or (ii) if no payment method has been provided to Omatic, immediately following execution of the Agreement to Purchase. Invoices for Renewal Terms shall be sent to Client at least thirty (30) days prior to the start of the renewal term. Fees are non-cancelable and non-refundable. After the Initial Term, and at the beginning of each Renewal Term thereafter, Omatic may adjust the fees applicable during the upcoming Renewal Term upon written notice provided at least sixty (60) days prior to the end of the Initial Term or applicable Renewal Term, as the case may be. All fees paid and expenses reimbursed under this Agreement will be in United States currency unless otherwise specified in the applicable Agreement to Purchase.
5.2 Expenses. If Omatic incurs reasonable travel and living expenses to perform Professional Services, Client shall reimburse Omatic for such expenses pursuant to Omatic’s then-current travel policy, available to Client upon request.
5.3 Late Fees. Client will pay a late fee of 1.5% per month (not to exceed the maximum allowed under state law) on all balances not paid when due. Omatic, at its option, may suspend the Services, in whole or in part, if Omatic does not receive all undisputed amounts due and owing under this Agreement.
5.4 Fees, Duties, and Taxes. The Fees for Services set forth in the applicable Agreement to Purchase are exclusive of taxes. Unless Omatic has a current and valid tax exemption certificate on file for Client, taxes shall be set forth on the applicable invoice. Client will be responsible for all applicable taxes if they apply.
5.5 Disputes; Offset. If Client believes an invoice is inaccurate, Client must notify Omatic in writing within thirty (30) days from the date of such invoice. Fees and expenses due from Client under this Agreement may not be withheld or offset by Client against other amounts for any reason
6. TERM AND TERMINATION.
6.1 Initial Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect for the initial term set forth on the applicable Agreement to Purchase (“Initial Term”), unless earlier terminated as provided for below. Thereafter, the Initial Term shall automatically renew for successive periods of one (1) year each (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides written notice to the other party at least 45 days prior to the end of the then-current Initial Term or Renewal Term of its intent to not renew the Agreement.
6.2 Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate this Agreement as follows: (a) by either party if the other party commits a material breach of this Agreement and such breach remains uncured 30 days after written notice of such breach is delivered to such other party including the failure to pay any fees due to Omatic; or (b) by either party if the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws.
6.3 Termination of Agreement to Purchase. Either party may terminate any outstanding Agreement to Purchase without terminating the entire Agreement if the other party commits a material breach of such Agreement to Purchase and such breach remains uncured 30 days after written notice of such breach is delivered to such other party.
6.4 Effect. Upon termination of this Agreement for any reason, all rights and licenses granted by Omatic hereunder to Client will immediately cease. If Omatic has Client Data in its possession upon termination, to the extent technologically feasible, Omatic will provide a copy of Client Data in standard database format. If Omatic creates archive copies of Client Data during the course of performing its obligations under this Agreement, Client agrees that Omatic may, but is not required to, retain such copies following termination subject to Omatic’s internal practices for record destruction.
6.5 Survival. Termination of this Agreement or any Schedule will not affect the provisions regarding Omatic’s or Client’s treatment of Confidential Information, provisions relating to the payments of amounts due, indemnification provisions, provisions limiting or disclaiming Omatic’s liability, or any other terms which by their nature should survive, which provisions will survive such termination.
7. OWNERSHIP; RIGHTS RESERVED.
Client and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to Client Confidential Information and Information and any artwork, logos, trade names, and trademarks that Client provides to Omatic (“Client Data”), including all intellectual property rights therein. Omatic shall have no right or license to use any Client Data except during the Term to the extent necessary to provide the Services to Client. Accordingly, in order for Omatic to provide the Services, Client hereby grants to Omatic and its suppliers a nonexclusive, transferable, assignable, fully paid-up license to use, reproduce, store, modify, and display Client Data. All other rights in and to the Client Data are expressly reserved by Client. All right, title and interest, including all intellectual and proprietary rights, in and to the Software Products, Deliverables, and all Omatic service marks, trademarks, trade names, logos, and any modifications to the foregoing (“Marks”) (and all suggestions, feedback, contributions, enhancements, improvements, additions, modifications, or derivative works thereto and copies thereof) will remain in possession of Omatic. Client acknowledges that the Software Products in source code form are the Confidential Information of Omatic and that the source code is not licensed to Client by this Agreement or any Schedule and will not be provided by Omatic. No right or implied license or right of any kind is granted to Client regarding the Services, including any right to use, reproduce, market, sell, translate, distribute, transfer, adopt, disassemble, decompile, reverse engineer the Software Products or the Documentation thereof, or any portions thereof, or obtain possession of any source code or other technical material relating to the Software Products. If Client provides any feedback, comments, suggestions, ideas, requests, or recommendations for modifications or improvements to Omatic, Client hereby assigns all right, title, and interest in any such feedback to Omatic to be used for any purpose.
8. CLIENT OBLIGATIONS.
8.1 System Requirements. The Services may only be used or accessed from Client devices and systems that meet the System Requirements. Client agrees to administer and monitor the use of its login IDs, passwords, and all access to the Services by End Users as permitted hereunder, pursuant to the guidelines Client may receive from time to time, including when the Services are activated. Client must have the required equipment, software, and Internet access to be able to use the Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely Client’s responsibility. Omatic neither represents nor warrants that the Software Services will be accessible through all web browser releases. “System Requirements” means the requirements provided by Omatic, as updated from time to time by Omatic.
8.2 Use of Software Products. Client shall not and shall not permit others in using the Software Products to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or Omatic; (ii) publish, ship, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, immoral or otherwise objectionable material or information; (iii) publish, ship, distribute or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability; (iv) engage in any conduct that could constitute a criminal offense or give rise to civil liability for Omatic; (v) misrepresent or in any other way falsely identify Client’s identity or affiliation, including through impersonation or altering any technical information in communications using the Software Products; (vi) transmit or upload any material through the Software Products containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Omatic’s, or any other person’s or entity’s, network, computer system, or other equipment; (vii) interfere with or disrupt the Software Products, networks or servers connected to the Omatic systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through the Software Products; (viii) attempt to gain unauthorized access to the Software Products or other Omatic customers’ computer systems or networks; or (ix) interfere with another party’s use of the Software Products. Omatic has no obligation to monitor Client’s use of the Software Products. However, Omatic may at any time monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request. Client shall use commercially reasonable efforts, including reasonable security measures relating to administrator account access details, to ensure that no unauthorized person may gain access to the Services.
8.3 Compliance with Law. Client represents and warrants that it will comply with all applicable laws and regulations pertaining to this Agreement. Without limiting the foregoing, Client agrees not to use (and will use its best efforts not to allow its End Users to use) the Software Products for illegal purposes or for the transmission of material that is unlawful, harassing, libelous (untrue and damaging to others), invasive of another’s privacy, abusive, threatening, or obscene, or that infringes the rights of others. Client is solely responsible for any and all improper use of the Software Products that occurs as a direct or indirect result of any act or omission of Client. Client will notify Omatic immediately of any unauthorized use of the Software Products or any other breach of security that is known or suspected by Client.
8.4 Professional Services. With respect to any Professional Services, Client shall have the following obligations set forth in this Section 8.4.
a. Client Contract Manager. Client shall cooperate with Omatic in all matters relating to the Professional Services and appoint a Client employee to serve as the primary contact with respect to this Agreement (the “Client Contract Manager”).
b. Access and Assistance. Client shall provide such access to Client’s premises, facilities, and computer systems and networks as may reasonably be requested by Omatic for the purposes of performing the Professional Services. Client shall respond promptly to any Omatic request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Omatic to perform the Professional Services. Client shall provide such information and materials as set forth in the applicable SOS or as Omatic may reasonably request in order to carry out the Professional Services, in a timely manner, and ensure that it is complete and accurate in all material respects.
c. Delay in Performance. If Omatic’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Omatic shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay, and Omatic’s obligation to perform will be extended by the same number of days as Client’s contingent action is delayed.
9. NON-DISCLOSURE AND CONFIDENTIALITY.
9.1 Disclosure. Each party may disclose to the other party certain Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. “Confidential Information” means any information that is of value to its owner and is treated as confidential, including trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing; “Disclosing Party” refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Recipient” refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents.
9.2 Requirement of Confidentiality. The Recipient agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates, officers, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 9; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under the Agreement; and (c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. Client acknowledges that the Software Products and Documentation are the Confidential Information of Omatic. The obligations in this Section 9 shall survive termination and continue for so long as the applicable information constitutes Confidential Information. Confidential Information shall not include information that: (a) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; (c) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
9.3 Compelled Disclosure. If the Recipient becomes legally compelled to disclose any Confidential Information, the Recipient shall provide: (a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Recipient remains required by law to disclose any Confidential Information, the Recipient shall disclose no more than that portion of the Confidential Information which, on the advice of the Recipient’s legal counsel, the Recipient is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
9.4 Client Data; Data Use. Client hereby grants to Omatic a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Client Data to the extent reasonably required for the performance of Omatic’s obligations and the exercise of Omatic’s rights under this Agreement. Client warrants to Omatic that Client has the right to provide such Client Data to Omatic in accordance with this Agreement. Additionally, Client agrees that Omatic may aggregate benchmarking results of Client’s use of Services with results of other customers’ use, and use and disclose such results on an anonymized basis for any purpose. Omatic shall exclusively own all benchmarking results derived from Client Data and Client understands and agrees that Client does not have any rights in or to the benchmarking data. Omatic shall not individually identify Client, Client Confidential Information, or Client’s use of Services.
10. DATA SECURITY; HIPAA.
10.1 Data Security. It takes both parties to protect Client Data and the Services. Omatic has implemented and will maintain administrative, physical, and technical safeguards designed to: (i) protect against anticipated threats or haz¬ards to the security of Client Confidential Information, and (ii) protect against unauthorized access to or use of Confidential Information that could materially harm Client. In order to continually improve Omatic’s safeguards, Omatic reserves the right to make changes to the physical and technical safeguards, policies, and data security programs at any time, provided Omatic will at all times maintain commercially reasonable database security procedures and standards. Client and Omatic acknowledge that Services may include sending email and publishing web pages over the public internet. Client will take commercially reasonable security precautions to prevent unauthorized or fraudulent use of Client Data and the Services.
10.2 HIPAA; BAA. This Section shall only apply to the extent applicable to Client and the data and information received by Omatic from or on behalf of Client. Omatic acknowledges that Client Data may contain protected health information (as the term “protected health information” is defined in 45 C.F.R. 160.103, “PHI”), the use of which is subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and Omatic shall perform its obligations under this Agreement and process PHI in accordance with HIPAA and related legal requirements. Furthermore, as necessary, Omatic and Client agree to enter into a Business Associate Agreement in good faith in connection with this Agreement to govern the sharing of PHI between the parties.
11. LIMITED WARRANTIES.
Each party represents and warrants that (i) it has the right and power to enter into this Agreement, and (ii) an authorized representative has accepted this Agreement. Omatic represents and warrants that the Software Services will materially perform pursuant to their then-current Documentation, and all Professional Services will be performed in a professional manner in accordance with industry standards. If Client believes that any Software Services fail to perform as described in the Documentation, Client must notify Omatic in writing within thirty (30) days of the occurrence of the problem, and Omatic will use commercially reasonable efforts to repair or replace the Software Services without charge. If Professional Services have been improperly performed, Client must notify Omatic in writing within thirty (30) days of the occurrence of the problem, and Omatic will, to the extent the Professional Services were improperly performed, reperform or mitigate or remedy the Professional Services without charge. THE FOREGOING PROVIDES CLIENT’S SOLE REMEDY FOR SERVICES THAT DO NOT COMPLY WITH THE FOREGOING WARRANTIES. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 11, EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY OMATIC. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL MEET CLIENT’S REQUIREMENTS.
12. LIMITATION OF LIABILITY.
12.1 Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO OMATIC PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12.3 Exceptions. The exclusions and limitations in Section 12.1 and Section 12.2 shall not apply to damages or other liabilities arising out of or relating to: (a) a party’s obligations under Section 14 (Indemnification); or (b) a party’s gross negligence or willful misconduct.
13. INSURANCE.
During the term of the Agreement, Omatic will procure and maintain, at its sole cost and expense, insurance coverage in the types and amounts set forth below. All insurance policies required pursuant to this Section will: (i) be maintained on an occurrence basis, except to the extent Omatic complies with the applicable provisions set forth in this Agreement; (ii) be maintained with a company with an A.M. Best rating of A- or better; and (iii) provide that such insurance be primary insurance and any similar insurance in the name of and/or for the benefit of Client shall be excess and non-contributory. Omatic shall make a copy of its certificate of insurance available to Client upon Client’s reasonable, written request.
13.1 Commercial General Liability with limits of not less than one million US dollars ($1,000,000.00) per occurrence and two million US dollars ($2,000,000.00) in the aggregate, including bodily injury and property damage and products and completed operations and advertising liability, which policy will include contractual liability coverage insuring the activities of Omatic under this Agreement;
13.2 Worker’s Compensation with limits not less than the minimum amount required by applicable Law;
13.3 Errors and Omissions/Professional Liability with limits not less than one million US dollars ($1,000,000.00) per occurrence and two million US dollars ($2,000,000.00) in the aggregate;
13.4 Commercial Automobile Liability with limits not less than one million US dollars ($1,000,000.00), combined single limit, and
13.5 Cyber Liability with limits not less than two million US dollars ($2,000,000.00) per occurrence.
14. INDEMNIFICATION.
14.1 Omatic Indemnification. Omatic shall defend Client and its officers, directors, employees, agents, successors and permitted assigns against any third party claim, suit, action or proceeding (each, an “Action”) based on a claim that Client’s receipt or use of the Services in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Client to the extent based on such an Action; provided, however, that Omatic shall have no obligations under this Section 14.1 with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Client to Omatic; (b) use of the Services in combination with any materials or equipment not supplied to Client or specified by Omatic in writing; or (c) any modifications or changes made to the Services by or on behalf of any person or entity other than Omatic. If the Services, or any part thereof, become, or in the opinion of Omatic may become, the subject of a claim of infringement or misappropriation, Omatic may, at its option: (i) procure for Client the right to use such Services free of any liability; (ii) replace or modify the Services to make them non-infringing; or (iii) terminate this Agreement and refund to Client any portion of the fees prepaid by Client for the infringing Services.
14.2 Client Indemnification. Client shall defend Omatic and its officers, directors, employees, agents, affiliates, successors and permitted assigns against all Actions based on a claim: (a) that any information or materials provided by Client (including Client Data), or Omatic’s receipt or use thereof, infringes any intellectual property right or misappropriates any trade secret of a third party, (b) arising out of a breach of Section 8.1 or (c) arising out of Client’s or its End User’s violation of the AUP; and shall pay all settlements entered into and damages awarded against Omatic to the extent based on such an Action.
14.3 Indemnification Procedures. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 14.3 shall not relieve the indemnifying party of its obligations under this Section 14 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
15. GENERAL.
15.1 Statutory Exception. If Client is a qualified public educational or government institution, any part of this Agreement which may be invalid or unenforceable against Client because of applicable state or federal law (example: all or part of the Indemnification section) shall be deemed invalid or unenforceable, as the case may be, and instead construed in a manner most consistent with applicable governing law. If required by law, this Agreement will be governed by applicable state or federal law.
15.2 Governing Law. This Agreement and any dispute arising hereunder shall be governed exclusively by the laws of the State of South Carolina, without regard to any conflict of law principles. The parties agree to exclusive venue for any dispute arising hereunder in the applicable state and federal courts located in the State of South Carolina. TO THE FULLEST EXTENT PERMITTED BY LAW, CLIENT AND OMATIC KNOWINGLY AND VOLUNTARILY, EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING ARISING UNDER OR RELATED TO THIS AGREEMENT.
15.3 Conflicting Terms. Notwithstanding the content of any Client purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
15.4 Notice. All notices or other communications sent pursuant to or in connection with this Agreement shall be made in writing and sent to the applicable address set forth in the Agreement, or as designated from time to time in writing by either party. All notices shall be deemed given if delivered receipt confirmed using registered or certified first class mail, postage prepaid, or recognized courier delivery.
15.5 Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that upon prior written notice to the other party, either party may assign the Agreement to an affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
15.6 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another.
15.7 Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
15.8 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
15.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
15.10 Amendment; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.11 Force Majeure. Neither party shall be liable for any failure to perform its obligations under this Agreement if prevented from doing so by a cause(s) beyond such party’s reasonable control.
15.12 Equitable Relief. Each party acknowledges that a breach by a party of Section 3.5 (Restrictions) or Section 9 (Non-Disclosure and Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
15.13 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
15.14 Relationship of Parties. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.
15.15 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
