Terms and Conditions
End User License Agreement (“Agreement”)
Subject to the terms and conditions of this Agreement, OmniEarth Inc. (“OmniEarth”) hereby grants a person or entity (“End User”) that desires to acquire the Data strictly for its own use, rather than for resale or distribution. End User may not authorize or appoint any dealers, sub-resellers, agents, representatives, subcontractors or other third parties to advertise, promote, resell or distribute the Data. All rights not specifically granted by OmniEarth hereunder are reserved by OmniEarth. Further, OmniEarth reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the Data, or to discontinue the publication, distribution, sale or licensing of any or all of the Data without liability of any kind.
1.1 Except as expressly provided in this Agreement, the rights and licenses granted in this Agreement are non-exclusive, and shall in no way limit OmniEarth in contracting with third parties for any alternate use of Data or with respect to any other transaction.1.2 End User shall not use, or permit or allow the Data to be used, for any purpose other than as permitted by this Agreement. 1.3 All intellectual property associated with the Data, its packaging, OmniEarth’s website and website design, extraction and delivery methods shall remain at all times the property of OmniEarth. End User shall acquire no interest in the Data or the intellectual property rights associated therewith by virtue of this Agreement, other than the licensed rights granted herein.1.4 OmniEarth shall retain sole and exclusive ownership of all right, title and interest (including, without limitation, all patent, copyright, trademark, and trade secret rights), now existing or hereafter coming into existence, in and to the collecting, compiling, transforming and normalizing the Data. All rights not expressly granted hereunder are reserved by OmniEarth, and End User agrees that it does not acquire any rights, express or implied, therein, other than the licenses expressly set forth in this Agreement.1.5 Neither party will use any of the other party’s trademarks, logos, trade names or service marks (collectively, the “Marks”) without the other party’s prior written consent. Any permitted use by one party of the other’s Marks shall be subject to the owner’s quality control standards, and all associated goodwill shall inure to the benefit of the respective owner.1.6 Nothing in this Agreement shall be deemed to constitute an undertaking by OmniEarth to continue to disseminate the Data in the present form or configuration. OmniEarth, in its sole discretion and without End User’s consent, may from time to time make modifications to the Data and OmniEarth’s website and delivery systems irrespective of whether such modifications would require changes to be made by End User to its systems or to any equipment, or would render any of the foregoing inoperative with respect to the Data.
2. Updates2.1 OmniEarth shall update the Data provided to End User. End User expressly acknowledges that the Data is derived from various sources and OmniEarth has no control over the frequency of the updates to the Data derived from the various sources.
3. Protection of Intellectual Property Rights3.1 OmniEarth shall retain sole and exclusive ownership of all right, title and interest (including, without limitation, all patent, copyright, trademark, and trade secret rights), now existing or hereafter coming into existence, in and to the collecting, compiling, transforming and normalizing the Data. All rights not expressly granted hereunder are reserved by OmniEarth, and End User agrees that it does not acquire any rights, express or implied, therein, other than the licenses expressly set forth in this Agreement.3.2 Neither party will use any of the other party’s trademarks, logos, trade names or service marks (collectively, the “Marks”) without the other party’s prior written consent. Any permitted use by one party of the other’s Marks shall be subject to the owner’s quality control standards, and all associated goodwill shall inure to the benefit of the respective owner.3.3 Nothing in this Agreement shall be deemed to constitute an undertaking by OmniEarth to continue to disseminate the Data in the present form or configuration. OmniEarth, in its sole discretion and without End User’s consent, may from time to time make modifications to the Data and OmniEarth’s website and delivery systems irrespective of whether such modifications would require changes to be made by Reseller to its systems or to any equipment, or would render any of the foregoing inoperative with respect to the Data.4. Representations and Warranties4.1 End User represents, warrants and covenants that it will not use or knowingly permit anyone to use the Data for any purpose or in any manner not authorized by this Agreement or for any unlawful purpose.4.2 End User understands and acknowledges that the Data and the underlying public information from which the Data is derived is subject to constant change and that its accuracy and completeness cannot be and are not guaranteed by OmniEarth. OmniEarth makes no warranties or guarantees, either expressed or implied, as to the completeness, accuracy, or correctness of the Data, nor accepts any liability arising from any incorrect, incomplete or misleading information contained therein.4.3 THE DATA IS PROVIDED AS-IS. OMNIEARTH MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE DATA INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF NON-INFRINGEMENT, WARRANTIES FROM A COURSE OF DEALING OR USE OF TRADE, OR ANY WARRANTIES THAT THE DATA MEET RESELLER’S REQUIREMENTS; THAT DATA WILL OPERATE IN COMBINATIONS WITH ANY PARTICULAR HARDWARE, SOFTWARE, SYSTEMS, OR DATA WHICH RESELLER MAY SELECT FOR USE.
5. Indemnification and Limitation5.1 Both Parties shall indemnify, defend and hold harmless Other Party and its affiliates and each of their officers, managers, members, directors, employees and agents (collectively, the “Indemnified Parties”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, judgments, settlements, and expenses of whatever nature, including, without limitation, and attorneys’ fees (collectively, “Claims or Losses”) imposed on, incurred by or asserted against the Indemnified Parties as a result of or relating to this Agreement or the use of the Data by End User or any third party that obtains the Data from End User pursuant to the terms and subject to the conditions of this Agreement.5.2 Neither Party shall have no liability for, and no obligation to defend or indemnify other Party, its employees or agents or any customers or other third parties from or against, any Claims or Losses whatsoever arising out of or relating to this Agreement, the Data including, without limitation, for any errors, inaccuracies, omissions, or other defects in, or untimeliness or unauthenticity of, the Data or for any claims or losses arising therefrom or occasioned thereby.5.3 IN NO EVENT SHALL OMNIEARTH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOST GOOD WILL, LOST BUSINESS, OR DOWN TIME, INCURRED BY END USER OR ITS EMPLOYEES, AGENTS OR SUBSCRIBERS AS A RESULT OF ANY BREACH OF THIS AGREEMENT OR ANY NEGLIGENCE IN CARRYING OUT THIS AGREEMENT, OR ANY OTHER CAUSE, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OMNIEARTH’S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS PAID (IF ANY) BY END USER TO OMNIEARTH UNDER SECTION 5. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT AND THAT OMNIEARTH WOULD NOT BE ABLE TO PROVIDE THE DATA TO END USER AT THE PRICES SET FORTH HEREIN WITHOUT SUCH LIMITATIONS.
6. Termination6.1 This Agreement may be terminated; (i) after OmniEarth has provided five (5) days’ prior written notice to End User or (ii) by OmniEarth immediately, in the event that OmniEarth, in its sole discretion, determines that any failure on the part of End User to comply with this Agreement has or is likely to have an adverse impact on the operation or performance of OmniEarth or likely to cause disproportionate harm to OmniEarth’s interests should termination be delayed. Either Party may terminate this agreement for convenience at any time for any reason by providing thirty (30) days written notice to the other Party and upon confirmation by OmniEarth that all payments have been received.6.2 Upon termination of this Agreement, End User shall discontinue immediately all further promotion and marketing of the Data.
7. Miscellaneous7.1 Nothing in this Agreement shall create a joint venture, partnership, franchise or principal-agent relationship between OmniEarth and End User.7.2 Neither this Agreement nor the rights granted by it shall be assigned, sublicensed or transferred by End User without the express written consent of OmniEarth provided, however, that OmniEarth shall have the right to assign this Agreement to any affiliate or purchaser of all or substantially all of its assets, property, business or equity. This restriction on assignments and transfers shall apply to assignments or transfers by operation of law, as well as by contract, merger, or consolidation. Any attempted assignment or transfer in derogation of this prohibition is void.7.3 Any notice, demand, or communication required or permitted to be given by any provision of this Agreement shall be deemed to have been sufficiently given or served for all purposes if (a) personally delivered, (b) sent by a nationally recognized overnight courier service to the recipient at the address below indicated or (c) delivered by facsimile which is confirmed in writing by sending a copy of such facsimile to the recipient thereof pursuant to clause (a) or (b) above:OmniEarth, Inc.: OmniEarth, Inc.
251 18th Street South, Suite 650
Arlington, VA 22202-3528
United States of America
Attention: Ali L. Khan, Contracts Manager
Fax: +1.703.842.8319or to such other address or facsimile number as any party hereto may, from time to time, designate in a written notice given in like manner. Except as otherwise provided herein, any notice under this Agreement will be deemed to have been duly given (x) on the date such notice is personally delivered or delivered by facsimile or (y) the next succeeding business day after the date such notice is delivered to the overnight courier service if sent by overnight courier; provided that in each case notices received after 4:00 p.m. (local time of the recipient) shall be deemed to have been duly given on the next business day. The email addresses provided in this Agreement are for convenience only and transmission of information via email does not constitute notice pursuant to the terms of this Agreement.
7.4 This Agreement shall be governed and interpreted by the laws of the State of Virginia, which shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder, without regard to conflicts of laws provisions. Both parties hereby consent to such personal and exclusive jurisdiction. 7.5 This Agreement supersedes all proposals, oral or written, all negotiations, conversations or discussion heretofore had between the parties relating to the subject matter of this Agreement. OmniEarth and End User both acknowledge that they each freely entered into this Agreement and have discussed its terms and conditions with legal counsel if needed and understand them. Each party also acknowledges that it has not been induced to enter into this Agreement by any representations or statement, oral or written, not expressly contained herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance by conduct or with the terms and conditions of any order or other instrument submitted by either party to the other.7.6 This Agreement shall not be deemed or construed to be modified or amended, in whole or in part, unless done in a writing signed by the parties hereto.Coverage Area: OmniEarth’s national coverage. End User recognizes and understands the Data has certain gaps in coverage based on the available source material. To the extent additional Data becomes available and OmniEarth, in its sole discretion, elects to make the Data available to End User, OmniEarth agrees to provide the additional Data to End User.
Data Delivery: Data delivery will be achieved by method determined beneficial to OmniEarth. End User must provide written request for alternate delivery method.