OMEGA GLASS, LLC MASTER SUBSCRIPTION AGREEMENT
Last Updated: December 11th, 2020
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF THE SERVICES DEFINED HEREIN.
OMEGA GLASS, LLC (“OMEGA”) IS WILLING TO GRANT THE SUBSCRIBER (DEFINED BELOW) RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES DESCRIBED ON THIS OMEGA SITE ONLY UPON THE CONDITION THAT YOU (THE “SUBSCRIBER”) ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY REGISTERING OR USING THE SERVICES DESCRIBE HEREIN YOU AGREE WITH THESE TERMS AND CONDITIONS. YOU MAY ENTER INTO THIS AGREEMENT AS AN INDIVIDUAL PERSON (A “SUBSCRIBER”) OR IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR OTHER LEGAL ENTITY (A “SUBSCRIBER”), YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND THIS ORGANIZATION OR ENTITY TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ORGANIZATION OR ENTITY, THEN OMEGA IS UNWILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES PROVIDED BY THIS SITE.
1.1 “Administrator” means an individual Subscriber or a contractor or employee of a Subscriber who has been delegated the authority to designate Authorized Users (defined below).
1.2 "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3 “Aftermarket Information” shall mean aftermarket information provided to Mitchell International, Inc. as NAGS Data or its NAGS Database by the supplier of the part.
1.4 “Authorized User” means an individual Subscriber or an organization or entity Subscriber including all of such organization’s or entity’s partners, members, employees, temporary employees, and independent contractors.
1.5 "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.6 “NAGS Data” shall mean propriety information created and originated by Mitchell and pertains to aftermarket auto glass: (i) Vehicle Make, Model, Sub model, Vehicle Modifier, Body Style and Year; (ii) NAGS Auto Glass Part Number, to include color code and attachment code for each glass part that is vehicle specific; (iii) NAGS Auto Glass Hardware Part Numbers; (iv) NAGS List Price for each glass part; (v) NAGS Labor Time for each glass part; (vi) Related notes, flags and qualifiers; (vii) NAGS Adhesive quantities; (viii) Vehicle information drawings and parts graphics; (ix) NAGS Windshield Repair Par Numbers; and (x) NAGS Auto Glass Service Part Numbers.
1.7 “NAGS Database” shall mean the master database which includes the following: (i) NAGS Data; (ii) Vehicle Manufacturer (OEM) Dealer part numbers and prices pertaining to auto glass and related hardware parts; e.g., moldings, gaskets, clips, etc.; (iii) Aftermarket manufacturer’s part number and price information; e.g., Precision Moldings; (iv) Related notes and flags; and (v) Vehicle identification drawings and window assembly graphics.
1.8 “OEM Information” shall mean OEM information derived from Mitchell International, Inc.’s Collision Database of OEM parts and prices.
1.9 “Services” means (i) access to and use of the Website and our applications and software made available to Subscriber via the website Omega maintains for access to the Services, and (ii) and any updates or upgrades to the Services which may be generally released by us to all subscribers from time to time.
1.10 “Subscriber” means the individual, organization, or entity purchaser of the subscription for the Services identified in the first paragraph of this Agreement.
1.11 "Third-Party Applications" means online, web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
1.12 "We," "Us," "Our," whether capitalized or not, “Omega” or the “Company” means Omega Glass, LLC.
1.13 The “Website” means the online, web-based applications and offline software products that are provided by Omega and designated online as its EDI service.
1.14 "You" or "Your," whether capitalized or not, means the Subscriber, and the Affiliates of the same. "Your Data" or “Content” means all electronic data or information submitted by You as part of your use of the Services.
- Parties. The parties to this legal Agreement are Omega, the owner of this website business and the software and intellectual property which is utilized to , and the Subscriber which may be referred to as “you”, “your”, and/or “yourself”. All references to “we”, “us”, “our”, “this website” or “this site” shall be construed to mean this Omega.com website business and Omega.
- Agreement and Modification of Agreement. The legal agreement between you and Omega (“Agreement”) consists of this Subscription Agreement and the Schedule of Fees, which is hereby incorporated herein and accessible through this website. We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible through a link on this site and/or by giving you prior notice of a modification. You should check this Agreement periodically for modifications by scrolling to the bottom of this page for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THIS SITE OR THE SERVICES FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE OF SUCH MODIFIED TERMS.
- Modification of Services. We reserve the right to modify the Services from time to time. Certain other new functionality may be offered in the future for an additional fee, and if you elect to purchase any of this new functionality it will be deemed to be part of the Services.
- Provision of Online Services. Subject to the terms and conditions hereof, we shall provide, and we hereby grant a non-exclusive, non-transferable license, to you to access and use the Services during the term of this Agreement only to the extent of authorized use (“Authorized Use”) which is your use of the Services generated by our software, but it is not otherwise an agreement for the sale or license of any software. You may use the Services only for your internal business purposes of processing, storing and maintaining your data, and not for purposes of resale. You are solely responsible for providing your Internet access and all other technology for your access to the Services, including your Internet connection.
- NAGS License. If you choose to grant a NAGS License to users on your account, You agree that you are an autoglass retailer, that is, you use and supply replacement autoglass as part of your business and charge for the same to your customers on a retail, not a wholesale, basis. You also understand and agree that your use of the Services may involve, at your choice, your access to and use of what is commonly known in the autoglass industry as the NAGS Database, access to which is controlled and/or licensed by such third parties and access to which is made via through Third-Party Applications. You agree that the Company may, at is sole discretion, purchase a license or sublicence for you from third-party vendors in order for you to access information from such NAGS Database. NAGS® and GlassMater® are registered trademarks owned by Mitchell International, Inc. The NAGS Data and All Related OEW and Aftermarket Information are under License from Mitchell International, Inc. You agree that your use of the NAGS Database or any related service will be undertaken in your capacity as an autoglass retailer and for no other purpose. You agree that the Company may obtain such a license or sublicense and that you will be responsible for any fees or costs associated with such licenses or sublicense. However, while you continue to utilize and pay for the Services, any licensing or sublicensing fee or charge for accessing the NAGS Database is included in the fees you pay us for your use of the Service. However, in the event this Agreement is terminated, for any reason, and the Company is required to incur costs associated with an unexpired term for such NAGS Database, Third-Party Applications, you agree to pay the Company for such costs.
- Fees and Payment for Services
8.1. Fees. You shall pay all fees specified in the “Pricing” page available on this Website. The Schedule of Fees may be modified at our discretion but shall not be modified more than 2 times in any one year. Except as otherwise specified herein, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable. Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be prorated for that full monthly period and charged in full thereafter.
8.2. Invoicing and Payment. You shall provide Us with valid and updated credit card information, or or alternative payment arrangements, such as ACH bank account debit information, acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit cards or utilize SCH bank account debit information for all amounts You are obligated to pay under the terms of this Agreement. Such charges shall be made in advance for the periods due in accordance with the Schedule of Fees. You agree that at the beginning of each billing term, we will automatically charge your credit card or debit your Bank Account via ACH information, as provided by you, for the Service fees. You may change your credit card or ACH information on file at any time. Service Fees are non-refundable. You also agree to pay, at our then current rates, for all goods or services that you request from us and that are not included in the Services. If We agree, in writing, that payment will be by a method other than a credit card or ACH debit, We will invoice You in advance and otherwise in accordance for each period fees are due. Invoiced charges are due upon receipt. You are responsible for maintaining complete and accurate billing and contact information in the Services.
8.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 2.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals on payment terms shorter than those specified herein.
8.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 14 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
8.5. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be paid by you by credit charge or payment by you after being invoiced, at our discretion, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Our income, property and employees.
- Restrictions on Use.
9.1 You agree that your use of the Services will be in a manner consistent with this Agreement and with all applicable laws and regulations. Without limiting the generality of the foregoing, you will not: (a) abuse or misuse the Services, including gaining or attempting to gain unauthorized access to the Services, or altering or destroying information in the Services except in accordance with accepted practices; (b) allow access to the Services other than the extent of Authorized Use specified in your signup page; (c) permit any third party that is not an affiliated entity to use or access the Services; (d) process or permit to be processed the data of any third party that is not an affiliated entity; or (e) attempt to copy, archive, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source code of any part of our technology. In addition, you are not authorized to use the Services or servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way (i) email in violation of any law or regulation, including without limitation, laws or regulations regarding “Spam”, text or short messages “SMS”, software viruses, and malicious computer code, and (ii) lewd, obscene, pornographic material, or any other material which we deem to be objectionable. The designation of any such materials is entirely in our sole discretion.
9.2 You may not access or use the Services if You are Our direct competitor, except with Our prior written consent. In this regard a direct competitor is any individual or entity which offers services similar to the Services. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
9.3 You may not display, perform, decompile, reverse engineer, market, sell, license, transmit, broadcast, republish or disseminate the NAGS Database or any parts thereof. You shall not distribute the NAGS Database in any medium and shall not publish or disseminate in any print, electronic or other format the information contained in the NAGS Database except for the purposes confirming information on your bills or invoices to your customers or to third-parties for purposes of obtaining payment for your services to such customers.
9.4 You agree that, in addition to any remedies we otherwise may have, if you breach any of the provisions in the paragraph under this section (9. Restrictions on Use) we shall be entitled to injunctive relief, without posting a bond, enjoining you continued breach and a judgment for damages which includes actual damages, damages available under any applicable federal or state statute, rule, or regulation, and damages equal to any profit or benefit you obtain or otherwise enjoy from such breach.
- Access to the Services.
10.1 Individual Subscribers are required to register as an initial Administrator and an Authorized User.
10.2 The initial Administrator shall register and designate himself/herself as the initial administrator. The initial Administrator shall be the overall administrator of the subscription to the Services and is authorized to appoint additional Administrators and Authorized Users. Any Administrator is authorized to manage the subscription, including the authority to appoint Authorized Users. If an Administrator deems it necessary to terminate access to the Services for any Authorized User, the Administrator shall follow the designated procedures to deactivate the person’s Username (defined below).
10.3 Administrators shall provide each Authorized Userwith a login ID and password (“Username”) which is not transferable to any other user, including Authorized Users.
10.4 Administrators shall manage the subscription and assume the responsibility for the appointment of, and use of the Services by, Authorized Users and Authorized Clients. Administrators are responsible for maintaining the confidentiality of Usernames and any additional information that we may provide regarding accessing your account. If any Administrator or Authorized User knowingly shares a Username with another person who is not authorized to use the Services, this Agreement is subject to termination for cause.
10.5 Use of the Services by Authorized Users via an Application Program Interface (“API”) is authorized, subject to the following conditions:
10.1.1 The terms and conditions of this Subscription Agreement shall apply to all use of the Services via an API or third party product, including without limitation all limitations of liability provided herein.
10.1.2 Excessive use of the Services via an API or third party product may result in a diminution of the Services. We reserve the right in our sole discretion to suspend or terminate use of the Services via an API or third party product.
10.6 We reserve the right to temporarily suspend access to the Service for operational and maintenance purposes. Regular suspensions may occur during the hours of midnight to 4:00 am Mountain time on Fridays or Saturdays without prior notice. At our discretion, We will provide email notice for other suspensions.
10.7 You agree (i) to provide certain current, complete, and accurate information regarding your Usernames and any additional login information we may provide, and (ii) to maintain and update your Usernames as required to keep such information current, complete and accurate. You warrant that your Usernames are and will continue to be accurate and current, and that you are authorized to provide your Usernames to us. You authorize us to verify your Usernames at any time. If any Username that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in our sole discretion, to suspend or terminate rights to use your account. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive license to convert such information into digital format and to use it for purposes of operating the Services.
- Compliance, Use and Security.
11.1 You shall (i) be responsible for Your compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the terms of this Agreement and applicable laws and government regulations. You shall not (a) make the Services available to any third party, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
11.2 You will be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet. As part of the Services, we will implement reasonable and adequate security procedures, to protect your data in our server(s) from unauthorized access using illicit means, including without limitation, administrative and technical protocols, intrusion detection, vulnerability and patch management, firewalls, virus detection and anti-virus software that is patched to a current status, authentication techniques, such as user names and passwords, or authorization formats which limit access to particular users (the “Data Security Standard”). Provided that we are in compliance with the Data Security Standard, the parties agree that we shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to us at the time. We will promptly report to you any unauthorized access to your information on our site promptly upon discovery by us, and we will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such information is required, you will be solely responsible for any and all such notifications at your expense. You agree to regularly check the Website to verify system requirements for the use of the Services, as such requirements may change from time to time with or without notice. You are solely responsible to upgrade or replace the equipment and other software you may use to access and use the Services and you agree that you are responsible for all costs associated with such upgrades or replacement.
- Confidential Information.
12.1 Each party (“Receiving Party”) acknowledges that it may receive confidential information from other party (“Disclosing party”). In our case, we claim as “Confidential Information” the nonpublic marketing and sales and subscriber information, algorithms, logic, design, and coding methodology embodied in the Services, our website, and all software and technology we use to provide the Services. In your case, “Confidential Information” (also referred to herein as “Subscriber Confidential Information”) is limited to the Non-Public Personal Information (as defined below) you provide in your capacity as a Subscriber for use of the Services. Confidential Information will not include information that: (i) is known to the Receiving Party prior to receipt from the Disclosing party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing party; (ii) becomes known (independently of disclosure by the Disclosing party) to the Receiving Party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party. In addition, Confidential Information does not include data regarding automotive parts acquisition and usage, which the Company may collect and aggregate and use as part of its business.
12.2 “Non-Public Personal Information” means any of the following information received by us from you: any identifier that permits physical or online contacting of a specific individual person, including without limitation, (A) any one or more of (i) first and last name, (ii) home or physical address, (iii) email address, (iv) telephone number, or (v) social security number; and (B) your credit card and bank account information.
12.4 If a Receiving Party is required to disclose Confidential Information by law enforcement authorities or the investigative process of any criminal or civil matter, or to satisfy any applicable law, regulation, legal process or enforceable governmental request (such as for example, to comply with a subpoena or court order), then to the extent permitted by law, the Receiving Party will provide the Disclosing Party with prompt written notice prior to such disclosure to enable the Disclosing Party to seek a protective or other appropriate relief. Consistent with the foregoing, the Receiving Party will disclose only that portion of the requested Confidential Information which is strictly compelled or otherwise required to be disclosed.
- Initial Term; Renewal Terms. The initial term of this Agreement will be one month starting in the month you signup for the Service and ending in that month. The initial term shall automatically renew for successive one-month terms until this Agreement is cancelled or terminated.
- Termination; Cancellation.
14.1 We may terminate this Agreement for with or without cause upon 30 days notice (as set forth below) to you. We also may terminate this Agreement, or at our discretion, suspend the Agreement along with suspending you access to the Service, without prior notice upon any material breach of the Agreement, including without limitation any failure to pay fees as they become due or any violation of Restrictions on Use provided in this Agreement.
14.2 You may cancel your subscription at any time. There will be no refunds of prepaid fees and charges and you shall be responsible for any costs and fees we incur from third parties for in connection with the Service.
14.3 If we terminate this Agreement or do not offer renewal, we will provide you at least thirty (30) days after termination of this Agreement to retrieve any and all of your Confidential Information and data in the form and format provided by our software. If you cancel your subscription, it is your sole responsibility to retrieve your Confidential Information prior to your cancellation of the Agreement. In any event, we reserve the right to irrevocably delete all of your Confidential Information and data beginning with thirty (30) days after termination or cancellation.
- Technical Support. During the term hereof, we will provide technical support in the form of responses to questions by email or “live chat” at no additional charge. Such services shall be available during times posted on the website for the Service.
- Warranties; Warranty Disclaimer We warrant that (i) we will undertake reasonable efforts to maximize uptime for the Services, except for routine maintenance, and (ii) the Services will be free of material defects and will conform to the descriptions provided on this site (“Limited Warranty”). Your sole and exclusive remedy for breach of this Limited Warranty shall be the prompt correction of material defects in the Services and non-conforming Services at our expense.
WE PROVIDE THE SERVICES “AS-IS” AND WITH ALL FAULTS. WE DO NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO YOU. WE, ON BEHALF OF OUR SUPPLIERS AND VENDORS, SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, COMPATIBILITY WITH SUBSCRIBER COMPUTER AND/OR TECHNOLOGY INFRASTRUCTURE, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THIS SITE AND/OR SERVICES PROVIDED BY THIS SITE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THIS SITE, WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, THAT WE HAVE NO CONTROL OVER THE INTERNET, AND THAT WE ARE NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THIS WEBSITE AND THE SERVICES. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. USE OF THE WEBSITE AND THE SERVICES IS NOT AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
FURTHER, YOU UNDERSTAND AND AGREE THAT WE OBTAIN AND GATHER CERTAIN INFORMATION, SUCH AS PART NUMBERS AND OTHER VEHICLE INFORMATION FROM SOURCES WE CONSIDERS RELIABLE. HOWEVER, OMEGA AND ITS THIRD-PARTY INFORMATION PROVIDERS MAKE NO WARRANTY WITH RESPECT TO THE ACCURACY, TIMELINESS OR COMPLETENESS OF SUCH INFORNATION, OR ANY DATA OR INFORMATION THAT MAY BE OBTAINED OR RETRIEVED THROUGH SERVICE FROM THIRD PARTIES, WHICH IS SUPPLIED ON AN “AS IS” BASIS. WE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OMEGA MAKES NO WARRANTY THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION, ARE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE FOREGOING MAY BE INAPPLICABLE TO LICENSEE. TO THE EXTENT THAT OMEGA MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY WARRANTY, SOLELY WITH RESPECT TO THE AFFECTED JURISDICTION, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
- Limitation of Liability
IN NO EVENT SHALL OMEGA BE LIABLE TO LICENSEE, ITS AFFLIATES, CUSTOMERS, OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, SAVINGS OR REVENUES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY AND STRICT LIABILITY) OR OTHERWISE, REGARDLESS OF WHETHER OMEGA KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. OMEGA’S MAXIMUM AGGREGATE LIABILITY UNDER ANY THEORY SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO OMEGA HEREUNDER IN THE ONE-MONTH PERIOD BEFORE THE DATE THE CAUSE OF ACTION AROSE. OMEGA SHALL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PERFORM DUE TO FORCE MAJEURE OR EVENT CAUSED BY A THIRD PARTY. IN THE EVENT APPLICABLE LAW DOES NOT PERMIT LIMITATION OR EXCLUSION OF LIABILITY HEREUNDER, WITH SPECIFIC REGARD TO SUCH JURISDICTION THE SUBJECT LIMITATION OR EXCLUSION OF LIABILITY SHALL BE DEEMED MODIFIED SO AS TO BE EFFECTIVE TO THE GREATEST EXTENT PERMITTED UNDER SUCH APPLICABLE LAW.
18.1 Our Intellectual Property Indemnity. Provided that your use of the Website or the Services does not violate the terms of this Agreement, we will indemnify, defend and hold you harmless from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against you that our software infringes on any U.S. intellectual property right of a third party that is known to us prior to providing the Services to you; provided, however, that we are notified in writing of such claim promptly after such claim is made upon you. We will have the right to control any defense of any claim. In no event shall you settle any such claim without our prior written approval. We will have no liability or obligation if the claim arises from (i) any alteration or modification to the Services other than by us, (ii) any combination of the Services with other programs or data not furnished by us, or (iii) any use of the Services prohibited by this Agreement or otherwise outside the scope of use for which the Services is intended. If you are enjoined from using the Services, or if we believe that the Services may become the subject of a claim of intellectual property infringement, we, at our option and expense, may: (i) procure the right for you to continue to use the Services; (ii) replace or modify the Services so as to make it non-infringing; or (iii) terminate this Agreement, in which case we will refund to you any and all subscription fees paid in advance by you for those Services not provided by us and provide, at your request and free of charge, your data in a database document format. These remedies are your sole remedies for claims of infringement.
18.2 Subscriber’s Indemnity. Subscriber shall indemnify, defend and hold us harmless from and against any lawsuit, liabilities, loss, cost or expense arising out of: (i) any breach by any Authorized User of any obligation provided in this Agreement, and (ii) any negligent act or omission by any Authorized User arising out of the use of our Services. We will notify you in writing of any such claim promptly after the claim is made upon us. You will promptly undertake at your own cost and expense the defense of any claim, suit, or undertaking with counsel reasonably acceptable to us. You will have the right to control any defense of any such claim, but in no event shall you settle any such claim without our prior written approval.
- Consequential Damages Waiver. EXCEPT FOR INDEMNITY OBLIGATIONS EXPRESSLY PROVIDED HEREIN AND ANY VIOLATION OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA AND/OR UNAUTHORIZED ACCESS OR ACQUISITION OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES OR THIS SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH DOES NOT LIMIT DAMAGES OR OTHER AVAILABLE REFLIEF SPECIFICALLY PROVIDED FOR ELSEWHERE IN THIS AGREEMENT.
- Liability Cap. Except for our indemnity expressly provided herein and our confidentiality obligations, our aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the total of Service Fees paid by you for the one (1) month immediately preceding the claim for such liability.
- Intellectual Property.
21.1 Ownership. We retain sole and exclusive ownership of all intellectual property rights embodied in our Services, website, content, promotional materials, and all software and technology we use to provide the Services. No rights are granted to You hereunder other than as expressly set forth herein.
21.2 Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
21.3 Analytics and Data Aggregation. As between Us and You, You own all of the content You post or input to the Services. However, You specifically grant Us the full right and authority to use in any manner we see fit such content in order fulfil the terms of this Agreement and for analytical and data aggregation purposes as such content pertains the geographical location of service, type of service, type of vehicle, type of part, part number, and any other data element. We will not use such content with regard to information which would identify a specific person or entity by name, other personal identification number, telephone number or would identify you specific customer information, full name, telephone number, mobile number, email address, credit card or billing information.
21.4 Suggestions. We shall have the right, royalty-free and free of any claim or interest by you to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services. You hereby disclaim any ownership or other interest or claim in any such suggestion, recommendation, request or feedback.
- Independent Contractors. The relationship of the parties and third party providers is that of independent contractor, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between the parties. You shall have no authority to enter into agreements of any kind on behalf of us, and you shall not have the power or authority to bind or obligate us in any manner to any third party.
- Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to addresses indicated herein or designated in writing by either party to the other. Such notice will be deemed to be given when received.
- Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of each party, whether by merger, sale of assets, or other agreements or operation of law. Except as provided above, you shall not assign this Agreement or any right or interest under this Agreement, without our prior written consent. Any attempted assignment or delegation on your part in contravention of this Section shall be void and ineffective.
- Force Majeure. Except for your obligation to pay fees and costs for the Services, each party will be excused from performance for any period during which, and to the extent that it, or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence including without limitation, acts of God, strikes, lockouts, riots, governmental interference by any governmental entity, foreign or domestic, acts of war, epidemics, communication line failures, power failures, the failure of performance of third parties, or denial of access of information or services from third parties necessary for the operation of the Service.
- Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the Utah Arbitration Act then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties, or if they cannot so agree, in accordance with the Utah Arbitration Act. If that Act does not provide a mechanism for the selection of an Arbitrator in such circumstances, a party may bring a declaratory judgment action in a court in the State of Utah for the sole purpose of appointing an arbitrator and subsequently enforcing any arbitration award. The arbitration shall take place in Salt Lake City, Utah and may be conducted by telephone or online. The arbitrator shall apply the laws of the State of Utah to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Should either party file an action contrary to this provision, the other party may recover attorney’s fees and costs.
- Jurisdiction and Venue; Applicable Law. The courts of Salt Lake County in the State of Utah, and the nearest U.S. District Court in the State of Utah, shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. The laws of the State of Utah shall apply to all issues in dispute, excluding its rules regarding conflicts of law.
- Survival. The following obligations shall survive the expiration or termination hereof: (i) any and all warranty disclaimers, limitations of liability, and indemnities, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the intellectual property rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money due to either party.
- Miscellaneous. This Agreement shall be construed under the laws of the State of Utah, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The Agreement is written in English, and English is its controlling language. Subscriber is responsible for complying with any local laws in your jurisdiction which might impact the Subscriber’s right to import, export or use the Website, and Subscriber represent and warrant to Omega that Subscriber has complied with any regulations or registration procedures required by applicable law to make this agreement enforceable