Omnicus terms and conditions

Last modified: March 20, 2019 | Previous version

1. Definitions

1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:

“Account” means an account enabling a person to access and use the Services, including both administrator accounts and user accounts;

“Customer” means the person or entity entering into this Agreement;

“Customer Confidential Information” means:

1. any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
   1. was marked or described as “confidential”; or
   2. should have been reasonably understood by the Provider to be confidential; and
2. the Customer Data;

“Customer Data” means all data, works and materials: uploaded to or stored on the Omnicus Services Platform by the Customer; transmitted by the Omnicus Services Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Services by the Customer;

“Customer Personal Data” means Personal Data that is processed by the Provider on behalf of the Customer in relation to the Customer Representatives;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

“Provider” means Omnicus AS, a company incorporated in Norway with registration number 917259666, having its registered office at ℅ Spaces Kvadraturen, Tollbugata 8, 0152 Oslo, a partnership established under the laws of Norway;

“Provider Confidential Information” means:

1. any information disclosed by or on behalf of the Provider to the Customer at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Customer (acting reasonably) to be confidential; and
2. the terms of the Agreement;

“Services” means the Omnicus Platform Services, as provided via Customer login at omnicus.com;

2. Term

2.1 The Agreement shall come into force upon the Effective Date.

2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with these terms and conditions.

3. License to use Omnicus Platform Services

3.1 The Provider hereby grants to the Customer a worldwide, non-exclusive license to use the Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.

3.2 The Customer shall use reasonable endeavors, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorized person may gain access to the Services using an administrator Account.

3.3 The parties acknowledge and agree that Clause 4 shall govern the availability of the Services.

3.4 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

4. Service Level Agreement (“SLA”)

4.1 This Clause sets out the Provider’s availability commitments relating to the Services. Integrated services from third parties, such as Facebook, are not included in our SLA, apart from the interface on our side.

4.2 In this Clause, “uptime” means the percentage of time during a given period when the Services are available at the gateway between the public internet and the network of the hosting services provider for the Services.

4.3 The Provider shall use all reasonable endeavors to ensure that the uptime for the Services is at least 99.9% during each calendar month.

4.4 The Provider shall be responsible for measuring uptime and shall do so using any reasonable methodology.

4.5 The Provider shall report uptime measurements to the Customer in writing. The customer can access https://status.omnicus.com at all times to check the service availability.

4.6 In respect of each calendar month during which the Services uptime is less than the commitment specified in Paragraph 4.3, the Customer shall earn service credits.

4.7 The service credits earned by the Customer shall be as follows: Monthly Uptime % = (Maximum Available Minutes - Downtime) / Maximum Available Minutes x 100. Monthly Uptime % that is less than 98% entitles the Customer to a reduction of the current monthly fee with 10%. Monthly Uptime % below 96% entitles the Customer to a 25% reduction of the current monthly fee.

4.8 The Provider shall deduct an amount equal to the service credits due to the Customer from amounts invoiced in respect of the Charges for the Services. All remaining service credits shall be deducted from each invoice issued following the reporting of the relevant failure to meet the uptime commitment, until such time as the service credits are exhausted.

4.9 Service credits shall be the sole remedy of the Customer in relation to any failure by the Provider to meet the uptime guarantee, except where the failure amounts to a material breach of the Agreement.

4.10 Upon the termination of the Agreement, the Customer’s entitlement to service credits shall immediately cease, save that service credits earned by the Customer shall be offset against any amounts invoiced by the Provider in respect of Services following such termination. Accrued service credits will never be paid to the Customer, only set off against current or future unpaid invoices.

4.11 Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in Paragraph 4.3:

1. a Force Majeure Event;
2. a fault or failure of the internet or any public telecommunications network;
3. a fault or failure of the Provider’s hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Provider and that company;
4. a fault or failure of the Customer’s computer systems or networks;
5. any breach by the Customer of the Agreement; or
6. scheduled maintenance carried out in accordance with the Agreement.

5. Backup

5.1 The Provider shall create a backup copy of the Customer Data on a daily basis, shall ensure that each such copy is sufficient to enable the Provider to restore the Services to the state they were in at the time the backup was taken and shall retain and securely store each such copy for a period of 7 days.

6. No assignment of Intellectual Property Rights

6.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

7. Charges

7.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions. The Provider may give a 30 days notice when changing current Charges.

7.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes. The Customer is responsible for paying value-added taxes or any other taxes applicable to the Customer. Norwegian customers will get invoices included the at any time current value-added tax.

8. Payments

8.1 The Provider shall issue invoices for the Charges to the Customer from time to time during the Term.

8.2 The Customer must pay the Charges to the Provider prior to the rendering of the Services. Access to Services will be put on hold in the event that Charges are not paid according to these terms and conditions.

9. Provider’s confidentiality obligations

9.1 The Provider must:

1. keep the Customer Confidential Information strictly confidential;
2. not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;
3. use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;
4. act in good faith at all times in relation to the Customer Confidential Information; and
5. not use any of the Customer Confidential Information for any purpose other than providing the Services.

9.2 Notwithstanding this Clause, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.

9.3 This Clause imposes no obligations upon the Provider with respect to Customer Confidential Information that:

1. is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
2. is or becomes publicly known through no act or default of the Provider; or
3. is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.

9.4 The restrictions in this Clause do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognized stock exchange.

9.5 The provisions of this Clause shall continue in force indefinitely following the termination of the Agreement.

10. Data protection - Data Processing Agreement

10.1 The purpose of this Clause is to secure adequate safeguards with the respect to the protection of privacy and to ensure that the processing of Personal Data is in accordance with the Data Controllers and Data Processors legal obligations. The Customer, as the Controller, warrants to the Provider, as the Processor, that it has the legal right to disclose all Personal Data that it does, in fact, disclose to the Provider under or in connection with these Terms and Conditions, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with these Terms and Conditions will not breach any applicable data protection or data privacy laws. The Processor is hereby authorized by the Controller to engage sub-processors the third parties identified at Omnicus' website. The Processors is entitled to reduce, expand and change the use of sub-processors after giving a 15 days notice to the Controller.

10.2 The Provider warrants to the Customer that:

1. it will act only on written instructions from the Customer in relation to the processing of Customer Personal Data;
2. it has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of Customer Personal Data and against loss or corruption of Customer Personal Data;
3. it will only process the Customer Personal Data for the purposes of performing its obligations and exercising its rights under the Agreement;
4. it will process the Customer Personal Data in compliance with all applicable laws; and
5. it will not transfer or permit the transfer of Customer Personal Data to any place outside the EEA without the prior written consent of the Customer.

10.3 The Provider shall notify the Customer as soon as practicable if:

1. any of the Customer Personal Data is lost or destroyed, or becomes damaged, corrupted or unusable;
2. the Provider receives any complaint or regulatory notice which relates to the processing of any of the Customer Personal Data; or
3. the Provider receives a request from a data subject for access to any of the Customer Personal Data.

10.4 The Provider shall cooperate with the Customer in relation to:

1. any request from the Customer to amend or delete any of the Customer Personal Data;
2. any complaint or regulatory notification relating to the processing of any of the Customer Personal Data; and
3. any request from a data subject for access to any of the Customer Personal Data,

at the cost and expense of the Customer.

10.5 The Provider shall ensure that access to the Customer Personal Data is limited to those Provider personnel who have a reasonable need to access the Customer Personal Data to enable the Provider to perform its duties under the Agreement; any access to the Customer Personal Data must be limited to such part or parts of the Customer Personal Data as are strictly necessary.

10.6 The Provider shall take reasonable steps to ensure the reliability of any Provider personnel who have access to the Customer Personal Data. Without prejudice to this general obligation, the Provider shall ensure that all relevant Provider personnel is informed of the confidential nature of the Customer Personal Data, have undertaken training in the laws relating to handling Personal Data, and are aware of the Provider’s duties in respect of that Personal Data.

11. Warranties

11.1 The Provider warrants to the Customer that:

1. the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
2. the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under these Terms and Conditions; and
3. the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

11.2 The Provider warrants to the Customer that:

1. the Platform and Services will conform in all material respects with the Services Specification;
2. the Services will be free from Services Defects;
3. the application of Updates and Upgrades to the Platform by the Provider will not introduce any Services Defects into the Services;
4. the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
5. the Platform will incorporate security features reflecting the requirements of good industry practice.

11.3 The Provider warrants to the Customer that the Services, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under Norwegian law.

11.4 The Provider warrants to the Customer that the Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

11.5 If the Provider reasonably determines, or any third party alleges, that the use of the Services by the Customer in accordance with these Terms and Conditions infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:

1. modify the Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
2. procure for the Customer the right to use the Services in accordance with these Terms and Conditions.

11.6 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.

11.7 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

12. Acknowledgments and warranty limitations

12.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.

12.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Services will be entirely secure.

12.3 The Customer acknowledges that the Services are designed to be compatible only with that software and those systems specified as compatible in the Services Specification; and the Provider does not warrant or represent that the Services will be compatible with any other software or systems.

12.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

13. Indemnities

13.1 The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of these Terms and Conditions (a “Provider Indemnity Event”).

13.2 The Customer must:

1. upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
2. provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
3. allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
4. not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider, without prejudice to the Provider’s obligations under Clause 27.1.

13.3 The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions (a “Customer Indemnity Event”).

13.4 The Provider must:

1. upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
2. provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
3. allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
4. not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer, without prejudice to the Customer’s obligations under Clause 27.3.

14. Limitations and exclusions of liability

14.1 Nothing in these Terms and Conditions will:

1. limit or exclude any liability for death or personal injury resulting from negligence;
2. limit or exclude any liability for fraud or fraudulent misrepresentation;
3. limit any liabilities in any way that is not permitted under applicable law; or
4. exclude any liabilities that may not be excluded under applicable law.

14.2 The limitations and exclusions of liability set out in this Clause 28 and elsewhere in these Terms and Conditions:

1. are subject to Clause 28.1; and
2. govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

14.3 The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.

14.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

14.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.

14.6 Neither party shall be liable to the other party in respect of any loss of use or production.

14.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

14.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.

14.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

14.10 The liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the greater of:

1. EUR 10.000,-; and
2. the total amount paid and payable by the Customer to the Provider under the Agreement in the 12 month period preceding the commencement of the event or events.

14.11 The aggregate liability of each party to the other party under the Agreement shall not exceed the greater of:

1. EUR 10.000,- and
2. the total amount paid and payable by the Customer to the Provider under the Agreement.

15. Force Majeure Event

15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

15.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

1. promptly notify the other; and
2. inform the other of the period for which it is estimated that such failure or delay will continue.

15.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

16. Termination

16.1 The Provider may terminate the Agreement by giving to the Customer not less than 30 days' written notice of termination, expiring at the end of any calendar month. The Customer may terminate the Agreement by giving to the Provider not less than 30 days' written notice of termination, expiring after the end of the Minimum Term. If the Customer has entered into a prepaid subscription for a given timeframe with automatic renewal, notice of termination should be submitted before the end of the pre-paid term.

16.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

1. the other party commits any material breach of the Agreement, and the breach is not remediable;
2. the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
3. the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).

16.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

1. the other party:
   1. is dissolved;
   2. ceases to conduct all (or substantially all) of its business;
   3. is or becomes unable to pay its debts as they fall due;
   4. is or becomes insolvent or is declared insolvent; or
   5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the * Agreement); or
4. (d) if that other party is an individual:
   1. that other party dies;
   2. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
   3. that other party is the subject of a bankruptcy petition or order.

16.4 The Provider may terminate the Agreement immediately by giving written notice to the Customer if:

1. any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
2. the Provider has given to the Customer at least 30 days' written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 30.4.

17. Effects of termination

17.1 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.

17.2 Within 30 days following the termination of the Agreement for any reason:

1. the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
2. the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,

without prejudice to the parties' other legal rights.

18. Severability

18.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

18.2 If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

19. Third party rights

19.1 The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.

19.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.

20. Entire agreement

20.1 The main body of these Terms and Conditions shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

20.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

21. Law and jurisdiction

21.1 These Terms and Conditions shall be governed by and construed in accordance with Norwegian law.

21.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of Norway. Oslo City Court (Oslo Tingrett) shall be the venue.