Terms of Service
Last Updated: July 13th, 2024
These Terms of Service (“Agreement”) constitute a legally binding Agreement made between you and the entity you represent, whether personally or on behalf of an entity ("you", “User”) and OmniClient Inc. dba: Focal (“OmniClient”, "Company", "we", "us", or "our"), concerning your access to and use of the OmniClient service, including any associated web application, mobile application, and desktop application (collectively, the "Service").
You agree that by accessing the Service, you have read, understood, and agreed to be bound by all of these Terms of Service, and that you represent and warrant that you have the authority to bind such entity to these terms. If you do not agree with the terms of this Agreement, use of the Service is strictly prohibited. If you have executed, or subsequently executes, an Evaluation Agreement or an Enterprise Services Agreement with OmniClient, then the terms and conditions of such executed Evaluation Agreement or Enterprise Services Agreement, shall govern and control your use of the service or offering.
OmniClient may modify this Agreement in its sole discretion, at any time. When changes are made, OmniClient will make an updated copy of the Terms of Service available on its website and update the Last Updated date above. OmniClient will also email you at your primary email address provided. Unless otherwise specified, any changes will become effective within thirty (30) days of OmniClient’s provision of notice of such updates. OmniClient may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted.
DEFINITIONS
“Pricing Form” means any order form for OmniClient’s Service executed by both parties that references this Agreement, which may include the pricing page on OmniClient’s website or web application.
“User” include employees, consultants, contractors, or agents who have paid for the Service.
“Third Party Connected Account” means any third-party platform connected to, or integrated with, the OmniClient Service by or on behalf of you, such as third party communications platforms.
"Confidential Information" means any and all non-public information, including but not limited to technical, financial, strategic, and business information, disclosed by OmniClient ("Disclosing Party") to the receiving party ("Receiving Party"), whether orally, in writing, or by any other means.
“User Data” means all data uploaded or transmitted to the OmniClient Service by User, including data affiliated with Third Party Connected Accounts.
“Service Analytics” means any metadata, telemetry data, log files, and other technical performance data automatically generated by the Service relating to the use, performance, efficacy, reliability and/or accuracy of the OmniClient Service, which does not contain any personally identifiable information or User Data.
“Effective Date” means the day the User starts using the Service.
OUR SERVICES
License to Use. Subject to these Terms of Service, we grant you a limited, non-exclusive, non-transferable, and revocable license to use the Service for your internal business purposes. You may not access or use the Service for any purpose other than that for which we make the Service available. The Service may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us. As a User of the Service, you agree not to:
Circumvent, disable, or otherwise interfere with security-related features of the Service.
Trick, defraud, or mislead us and other Users, especially in any attempt to learn sensitive account information such as user passwords.
Make improper use of our support services or submit false reports of abuse or misconduct.
Attempt to impersonate another user or person or use the username of another user.
Use any information obtained from the Service in order to harass, abuse, or harm another person.
Use the Service as part of any effort to compete with us or otherwise use the Service and/or the Content for any revenue-generating endeavor or commercial enterprise.
Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Service.
Attempt to bypass any measures of the Service designed to prevent or restrict access to the Service, or any portion of the Service.
Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Service.
Use the Service in a manner inconsistent with any applicable laws or regulations.
Support. Subject to the terms of this Agreement, Company shall use commercially reasonable efforts to (a) provide the Service; and (b) provide Monday through Friday email support during work hours (Pacific Time), excluding federal holidays. Managed enterprise accounts may expect dedicated support.
Free Trials. The Free Trial will be limited to a period of fourteen (14) days, unless otherwise outlined in an Evaluation Agreement or Enterprise Service Agreement. Following the expiration of the Free Trial period, the paid subscription set forth in the Pricing Form will commence, unless you provide written notice of intent to terminate the Free Trial.
USER REGISTRATION AND ACCOUNT SECURITY
Access. To access the Service, Users will be required to register for an account. You agree to keep your password confidential and will be responsible for all use of your account and password. You agree to promptly notify OmniClient of any unauthorized use or access to your account. You agree not to share User seats with other Users or unaffiliated parties who have not paid for access to OmniClient.
Restrictions. You agree not to, and you will not permit others to: a) License, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Service or make the Service available to any third party. b) Modify, make derivative works of, disassemble, decrypt, reverse compile or reverse engineer any part of the Service. c) Remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of the Company or its affiliates, partners, suppliers or the licensors of the Service.
Third Party Connected Accounts. In order to access Services features, you may need to link Third Party Connected accounts to the Omniclient service. In doing so, User represents and warrants that it is entitled to disclose any log-in information in connection and to grant OmniClient access to such Third Party Connected Accounts. OmniClient will have no liability for any unavailability of any Connected Account, or any third-party provider’s decision to discontinue, suspend or terminate any Third Party Connected Account.
SUBSCRIPTION, PAYMENT, AND CONFIDENTIALITY
Fees and Payment. You agree to pay OmniClient the fees for the OmniClient Service as set forth on the applicable Pricing Form. Payment is due at the time User creates an account and selects an annual or monthly package.
Pricing Form Renewal. Unless otherwise specified in the applicable Pricing Form, all subscriptions will continue indefinitely until terminated in accordance with this Agreement. After the initial subscription period and any subsequent period, the subscription will automatically renew for an equivalent period at OmniClient's then-current price, unless you provide at least thirty (30) days written notice of intent to terminate before the end of the current term.
Cancellation Requests. All subscription cancellation requests must be sent to support@omniclient.io.
Taxes and Additional Charges. All fees are exclusive of, and you shall pay, all sales, use, excise and other taxes, as well as applicable export and import fees, customs duties, and similar charges that may be levied in connection with this Agreement.
Late Payment and Service Suspension. OmniClient reserves the right to discontinue the OmniClient Service and suspend User’s access if any fees are overdue. Service will be reinstated upon full payment of outstanding fees.
Billing Information. User is responsible for maintaining complete, accurate, and up-to-date billing and contact information.
Confidentiality. As the Receiving Party, you agree to a) Maintain the strictest confidentiality of all Confidential Information; b) Not disclose, distribute, reproduce, or allow access to the Confidential Information to any third party without OmniClient's prior written consent; c) Use the Confidential Information solely for the purpose of using or providing the OmniClient Service as authorized by this Agreement; d) Limit access to Confidential Information to its employees, agents, and contractors who have a legitimate need to know, and who are bound by confidentiality obligations no less restrictive than those contained herein. The Receiving Party shall protect OmniClient's Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no case less than reasonable care. This includes implementing and maintaining appropriate technical, physical, and organizational security measures. If the Receiving Party is required by law or court order to disclose any Confidential Information, it shall: a) Provide OmniClient with prompt written notice to allow OmniClient to seek a protective order or other appropriate remedy; b) Disclose only the minimum amount of information necessary to comply with the requirement; c) Use best efforts to obtain reliable assurance that the disclosed information will be treated confidentially. Upon termination of this Agreement or upon OmniClient's request, the Receiving Party shall promptly: a) Return all tangible Confidential Information to OmniClient; b) Permanently delete or destroy all electronic or other intangible forms of Confidential Information; c) Provide written certification of such deletion or destruction within 30 days. The obligations of confidentiality shall not apply to information that: a) Was in the public domain at the time of disclosure or subsequently enters the public domain through no fault of the Receiving Party; b) Was lawfully in the Receiving Party's possession prior to disclosure, as evidenced by written records predating the disclosure; c) Is independently developed by the Receiving Party without use of or reference to the Confidential Information, as demonstrated by contemporaneous written records; d) Is received from a third party without breach of any obligation owed to OmniClient. The obligations of confidentiality under this Agreement shall survive the termination or expiration of this Agreement.
INTELLECTUAL PROPERTY AND DATA OWNERSHIP
Our Intellectual Property. The Service and its entire contents, features, AI or machine learning infrastructure, anonymized or aggregated synthetic data, and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
Feedback. Any feedback, comments, ideas, improvements or suggestions provided by you to the Company with respect to the Service shall remain the sole and exclusive property of the Company. The Company shall be free to use, copy, modify, publish, or redistribute such feedback.
User Data. The User maintains full ownership of all User Data. By using our services, the User grants OmniClient a global, non-exclusive, cost-free license to: (a) utilize User Data for service delivery; and (b) employ anonymized, aggregated User Data to enhance OmniClient's offerings. The license for (b) is ongoing and cannot be revoked. The Client confirms they have the authority to grant these permissions to OmniClient.
Data Protection. OmniClient employs Microsoft Azure, a trusted cloud service, for storing User Data. We reserve the right to use similarly reputable providers like Amazon AWS or Google Cloud Platform (GCP). If OmniClient detects any unauthorized access or misuse of User Data, we will: (i) promptly inform the Client in writing, and (ii) take appropriate measures to determine the cause, reduce potential harm, and prevent future occurrences. Notifications about security events will include known details and steps taken to address the situation.
Service Analytics. OmniClient retains complete ownership of all Service Analytics and may use this data for any legal purpose.
TERM AND TERMINATION
Duration. This Agreement becomes effective on the Effective Date and continues as specified herein (the "Term"). Each Pricing Form carries an initial duration of twelve (12) months (the "Initial Pricing Period"), automatically extending for additional twelve (12) month periods (each a "Renewal Pricing Period", collectively with the Initial Pricing Period, the "Pricing Duration"), unless either party notifies the other in writing of its intention to discontinue at least thirty (30) days before the current period ends. OmniClient reserves the right to adjust the Fees for OmniClient Services for any Renewal Pricing Period by providing written notice of such adjustment at least thirty (30) days in advance.
Termination. Either party may end this Agreement by written notice if the other party significantly violates the Agreement and fails to rectify such violation (if rectifiable) within thirty (30) days of receiving written notification. When this Agreement terminates for any reason: (a) all outstanding amounts due to OmniClient under this Agreement become payable immediately; and (b) both parties must return all property (including Confidential Information) belonging to the other party. OmniClient commits to removing all User Data from the OmniClient Service and terminating all User access to the OmniClient Service upon the Agreement's conclusion or termination. To avoid doubt, this provision does not obligate OmniClient to erase, remove, or return any aggregated and anonymized User Data that OmniClient is permitted to utilize as per this Agreement. For the avoidance of doubt, Sections 1, 4.g, 5, 6, 7, 8, 9, and 10 survive this Agreement.
RECIPROCAL ASSURANCES AND DISCLAIMER
Reciprocal Assurances. Both parties affirm and guarantee that: they possess the requisite legal capacity and authorization to become signatories to this Agreement; They shall adhere to all relevant laws, regulations, and statutes in fulfilling their responsibilities and exercising the privileges bestowed upon them within this Agreement; They are not constrained by any pre-existing arrangements or conflicts of interest with external entities that would impede or preclude their ability to meet the commitments outlined herein.
Disclaimer. The Service is provided on an as-is and as-available basis. You agree that your use of the Service will be at your sole risk. To the fullest extent permitted by law, we disclaim all warranties, express or implied, in connection with the Service and your use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. We make no warranties or representations about the accuracy or completeness of the Service's content or the content of any websites linked to the Service and we will assume no liability or responsibility for any (1) errors, mistakes, or inaccuracies of content and materials, (2) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the Service, (3) any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein, (4) any interruption or cessation of transmission to or from the Service, (5) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Service by any third party, and/or (6) any errors or omissions in any content and materials or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available via the Service.
LIMITATION OF LIABILITY
In no event will we or our directors, employees, or agents be liable to you or any third party for any direct, indirect, consequential, exemplary, incidental, special, or punitive damages, including lost profit, lost revenue, loss of data, or other damages arising from your use of the Service, even if we have been advised of the possibility of such damages.
INDEMNIFICATION
You agree to protect, defend, and hold harmless our company, its subsidiaries, affiliates, and all respective directors, officers, employees, agents, partners, and representatives, from and against any and all losses, liabilities, damages, costs, and expenses, including reasonable legal fees and costs, arising from or related to: (1) any content you submit, post, or transmit through the Services; (2) your use of or access to the Services; (3) any violation of these Terms of Service; (4) any breach of the representations or warranties you have made herein; (5) your infringement of any third-party rights, including without limitation any intellectual property rights; or (6) any harmful or malicious actions directed at other users of the Services with whom you've interacted. We retain the right, at your expense, to assume sole control of the defense for any matter subject to this indemnification. In such an event, you agree to assist and cooperate fully with our defense, at your own expense. We will make reasonable attempts to inform you of any such claim, lawsuit, or proceeding upon learning of its existence, provided that such notification is subject to this indemnification clause.
GENERAL
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. Any disputes arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in California. Neither party may assign any rights or obligations arising under this Agreement without the prior written consent of the other party; except that either party may assign this Agreement without consent to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of this provision will be null and void. User agrees that OmniClient may use User's name and logo on OmniClient's website and in marketing materials to identify User as a customer of OmniClient. OmniClient may subcontract certain aspects of its services to qualified third parties, provided that any such subcontracting arrangement will not relieve OmniClient of any of its obligations under this Agreement. Any notice required or permitted under this Agreement must be given in writing to the other party at the address set forth in this Agreement. Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, or (b) sent by recognized courier service. This Agreement may only be modified by a written instrument signed by both parties. No oral modifications shall be effective. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. The invalid or unenforceable provision shall be replaced by a valid, enforceable provision that most closely matches the intent of the original provision. The failure of either party to enforce any provision of this Agreement will not be construed as a waiver of such provision or the right of such party thereafter to enforce such provision. Any waiver must be in writing and signed by the waiving party to be effective. The parties to this Agreement are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties. Neither party has the authority to bind the other or to incur obligations on the other's behalf without the other party's prior written consent. This Agreement, including any attached exhibits, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, between the parties. No other agreements, representations, warranties, or other matters, whether oral or written, shall be deemed to bind the parties with respect to the subject matter hereof.
CONTACT US
In order to resolve a complaint regarding the Service or to receive further information regarding use of the Service, please contact us at:
OmniClient Inc. dba Focal
By using the Service, you acknowledge that you have read these Terms of Service, understood them, and agree to be bound by them. If you do not agree to these Terms of Service, you are not authorized to use the Service.