Omnivati Software Platform - Terms of Services
[Updated on November 17 2020]
Welcome to Omnivati’s Software Platform. We provide a digital toolkit suitable for educators, students and businesses, which enables the rapid and systematic generation and management of creative ideas ("Platform"). The Platform enables users to intuitively apply multiple structured creativity methods and rapidly generate new valuable strategies, products, services, processes and tools ("Services").
These Terms of Services (the “Terms”) together with Omnivati’s Privacy Policy available at https://omnivati.com/privacy-policy (collectively referred to as the "Agreements") as updated from time to time, constitute the entire agreement between Omnivati Ltd. ("Omnivati" "We" "Our") and its users (" you" "your" or "users") for the Services (as defined below) provided by the Platform.
Upon the earlier of, you checking "I agree", where applicable or upon you using the Services via the App or System, you shall be deemed to have confirmed and agreed that you have read the Agreements, understood them, and that such confirmation and agreement constitutes as a valid and legally binding contract between yourself and Omnivati. If you do not agree to any of the terms of the Agreements, Omnivati may be unwilling to grant you access to the Services. If you are unwilling to accept all of the terms of the Agreements, you may not use the Services. If the Services are considered to be illegal under the laws of the country in which you are situated, or you are otherwise barred from receiving the services under such laws, please avoid or discontinue your use of the Services
Omnivati reserves the right, at its sole discretion, to revise or modify the Agreements at any time, and you agree to be bound by such revisions or modifications. These changes will apply at that instant to all current and subsequent uses of the Services. You agree that you shall have the responsibility to review the Agreements periodically and hereby waive any right you may have to receive specific notice of such changes or modifications. Without derogating from the above, Omnivati may notify you of a change or amendment to the Agreements by sending you an e-mail, all in accordance to Omnivati’s sole discretion. Your continued use of the Services shall be deemed as an act of acceptance of such changes or modifications. If you do not agree to the Agreement as updated from time to time, your sole remedy shall be to discontinue the use of the Services.
1. The Services
1.1 Please read the Agreements carefully as such Agreement represents the entire understanding between Omnivati and its users regarding the Services, as may be updated from time to time.
1.2. Subject to your compliance with the Agreements, as part of the Services and to the extent needed in order to receive the Services, Omnivati grants you a personal, revocable, non-exclusive and non-transferable limited license to use our Services on your computer, mobile devices, or other electronic devices ("Device") during the term for which you have subscribed and for as long you are paying the fees as set below.
1.3. Omnivati may make modifications, additions and upgrades to the Services and any software provided through the Platform. The terms of the Agreements will apply to any updates that Omnivati may make available to you. For the removal of doubt, it is clarified that Omnivati is under no obligation to develop or release any updates or upgrades.
1.4. As a user, you shall be identified inter-alia through the information you provide us as further elaborated in Omnivati’s Privacy Policy. You shall be responsible for compliance with the provisions of the Agreements to the extent that such provisions apply to you and for all the activities that occur when you use our Services. Without derogating from the provisions of section 3 below such responsibility shall include any use of the Services by any individual or entity to which you have granted access to our Services, or any individual or entity using the Services on your behalf.
2. Support and Maintenance
2.1. Omnivati makes no representation or warranty that the Services will be accessible at all times. You acknowledge and agree that the Platform Services may be from to time: (i) automatically updated, upgraded or modified; and/or (ii) inaccessible or inoperable at any time and for any reason, including without limitation due to connectivity issues, unscheduled maintenance or repairs, or causes that are beyond Omnivati’s reasonable control or not reasonably foreseeable by Omnivati, including without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.
2.2. If the Services become inaccessible to users or not fully functional, other than due to scheduled maintenance, Omnivati shall use commercially reasonable efforts to respond and endeavor to remedy such unavailability or failure of functionality as soon as reasonably possible.
2.3. You hereby confirm that you are: (i) aware that the Services operation depend and rely on third party products, services and infrastructure; and (ii) that you shall be responsible to ensure that your Device(s), operating systems, computer networks and network connections, telecommunications facilities meets all the necessary technical specifications to enable it to access and use the Services. Any failure or slowdown of the foregoing may directly or indirectly affect the manner and reliability in which the Services are provided and/or the function.
3. Rules of Services Usage
3.1. You undertake that your use of the Services shall be lawful and not to defraud, or attempt to defraud, Omnivati or other users and that you shall not act in bad faith in while using the Services. You hereby agree that in case that Omnivati determines that you have acted in bad faith and/or in violation of the Agreements, or if Omnivati determines your actions fall outside of reasonable standards, Omnivati may, at its sole discretion, prohibit you from using the Services. In furtherance of the foregoing, and as an example and not as a limitation, you hereby agree that by using the Services you shall not act as follows:
3.1.1. Promote, host, display or implement the Services or any information received thereof, on websites that: (i) contain indecent, obscene or pornographic material, hate speech, defamatory, libelous, obscene, gambling-related, discriminatory, deceptive, abusive spyware, adware, or other malicious programs or code, unsolicited mass distribution of email, or any illegal subject matter or activities or otherwise offensive content; (ii) incorporate any materials that infringe or assists others to infringe on any copyright, trademark or other intellectual property rights; (iii) are an incentive-based website, such as a lottery or sweepstakes website which rewards users for clicking on links; (iv) engage in activities that violate Omnivati 's Privacy Policy; or (v) infringe any right of any third party or violate any applicable law or regulation;
3.1.2. Libel, ridicule, defame, mock, stalk, intimidate, threaten, harass, or abuse anyone, hatefully, racially, ethnically or in any other manner;
3.1.3. Copy, sell, transfer, assign, sublicense, disassemble, decompile, private label, reverse engineer or (except if expressly authorized by Omnivati or permitted under applicable law), modify or alter any part of Omnivati’s software or grant any other third party the right to do any of the above;
3.1.4. Upload or transmit (or attempt to upload or transmit) files that contain viruses, trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of the Services or the Devices of other users of the Services;
3.1.5. Advertise, solicit or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (spam) to anyone;
3.1.6. Violate the contractual, personal, intellectual property or other rights of any party including by using, uploading, transmitting, distributing, or otherwise making available any information or material made available through the Services in any manner that infringes any copyright, trademark, design, patent, trade secret, or other rights of any party (including rights of privacy or publicity);
3.1.7. Create false personas, multiple identities, use bots or other automated software programs to defraud or which otherwise violate this Agreement and/or the terms of service of any third-party applications;
3.1.8. Attempt to obtain private information from other users including personally identifiable information (whether in text, image or video form), identification documents, or financial information;
3.1.9. Upload or transmit (or attempt to upload or to transmit), without Omnivati's express consent, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats ("gifs"), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as "spyware", "passive collection mechanisms" or "pcms");
3.1.10. Improperly use the support services or make false reports to Omnivati;
3.1.11. Encourage any third party to: (i) edit or modify any tag, or remove, obscure or minimize any tag in any way; or (ii) engage in any action or practice that reflects poorly on Omnivati or otherwise disparages or devalues Omnivati's reputation or goodwill;
3.1.12. Engage in any fraudulent activity with respect to payment methods or advertiser tracking mechanisms;
3.1.13. violate any applicable laws or regulations, or encourage or promote any illegal activity including, but not limited to, copyright infringement, trademark infringement, defamation, invasion of privacy, identity theft, hacking, cracking or distribution of counterfeit software, or cheats or hacks to the Services;
3.1.14. Attempt to interfere with, hack into or decipher any transmissions to or from the servers of the Services;
3.1.15. Interfere with the ability of others to enjoy using the Services, including disruption, overburden or aid the disruption or overburdening of the Services’ servers, or take actions that interfere with or materially increase the cost to provide the Services for the enjoyment of all its users;
3.1.16. Attempt to discover any source code or underlying ideas or algorithms of the Services; and/or
3.1.17. Provide, lease, rent, lend, license, assign, delegate, or otherwise transfer or use or allow others to transfer or use the Services or any output generated by the Services for the benefit of any third party.
4. Submissions
4.1. For the purpose of this Agreement "Submission(s)" shall mean: any feedbacks, identifying potential errors, enhancements, improvements, unsolicited ideas, solicited ideas, works, materials, proposals, suggestions, artwork, content or the like, including for advertising campaigns, promotions, products, services, technologies, product enhancements, processes, marketing strategies, product names, content or creative materials which relates directly or indirectly to the Services and the Platform. You agree that: (1) your Submissions and their contents along with related intellectual property rights will automatically become the property of Omnivati, without any compensation to you; (2) Omnivati may use or redistribute the Submissions and their contents for any purpose and in any way on an unrestricted basis; (3) there is no obligation for Omnivati to review the Submissions; and (4) there is no obligation to keep any Submissions confidential.
5. User Content
5.1. You agree that any content uploaded by you through the Services shall be uploaded via the use of technology and tools provided by Omnivati. You agree that you are uploading such content willingly and you represent that you own such content or have received the necessary authorizations from third parties to the extent that such authorizations are necessary, and that such authorizations are documented and shall be provided to Omnivati upon request, and according to which you have all rights to upload said content and that uploading of the content by you complies with all applicable laws.
5.2. We do not claim ownership of any videos, data, text, graphics, photographs, or any other content, and their selection and arrangement, provided or uploaded to the Services by any user (the "User Content").
5.3. We may or may not regulate User Content and provide no representations or guarantees regarding the accuracy, quality, or integrity of any User Content posted via the Service. By using the Services you acknowledge and accept that you may be exposed to material you find offensive or objectionable. You agree that we will not, under any circumstances, be responsible or liable for any User Content, including, but not limited to, errors in any User Content or any loss or damage incurred by use of the User Content or for any failure to or delay in removing User Content.
5.4. We reserve the right (but shall at no time be obligated) to, in our sole discretion, remove, block, edit, move, disable or permanently delete User Content from the Platform with or without notice for violating the terms of this Agreement. You hereby agree that, to the maximum extent permitted by applicable law, we shall at no time be responsible or held liable for the removal, modification or blocking of material or User Content and shall at no time be obligated to effect such removal other than under applicable law.
6. Intellectual Property Rights
Ownership of Intellectual Property. You hereby acknowledge Omnivati’s exclusive right, title and interest in and to the Services, the Platform and to any and all Intellectual Property Rights (as defined below) evidenced thereby, embodied therein, and/or attached, connected or related thereto and any derivatives thereof including but not limited to all materials, any computer software (in object code and source code form), data or information employed or received by Omnivati pursuant to the Agreements, include the modifications, improvements, updates, upgrades, enhancement, added features, inventions, ideas, insights, concepts, methods, designs, know-how, and processes relating to the same, whether created, developed, discovered or conceived in connection with the Agreements or otherwise including any other Intellectual Property Rights therein, and regardless of whether you or anyone on its behalf may have contributed to the conception of any of the foregoing, or paid Omnivati for such, are and shall at all times vest exclusively with Omnivati, and may not be used by yourself or anyone on your behalf.
For purposes of this Agreement, "Intellectual Property Rights" means all intangible legal rights, titles and interests evidenced by or embodied in or attached/connected/related to the Services and the Platform, including without limitation: all inventions, patents, patent applications, trademarks, service marks, trade dress, logos, designs, trade names, and corporate names, domain names, any work of authorship, copyrights, trade secrets, Confidential Information, and all other proprietary rights in whatever form or medium, in each case on a worldwide basis; together with all revisions, extensions, reexaminations, translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith.
7. Fees; Payment
7.1. The Services or any part thereof may be subject to payment of applicable fees, as shall be detailed by Omnivati from time to time. The access to the Services and use of its features will be contingent upon timely payment of applicable fees. Omnivati reserves the right to terminate your use of the Services in case of any failure on your part to timely pay any fees due by you to us. Omnivati may, at its sole discretion, add, remove or change the features and Services it offers or the fees (including the amount or the type of fees) Omnivati charges at any time. You agree that you are solely responsible for checking via the Services to confirm whether there are any new fees and their effective date(s). Omnivati is not responsible for any charges or expenses you incur as a result from being billed by Omnivati in accordance with these Terms.
7.2. When applicable, payment will be safely processed through a third party payment processor (a "Payment Processor") and then shall be paid to us. In the event of credit card fraud, most banks and credit card companies bear the risk and cover all the charges resulting from such fraud or misuse, which may sometimes be subject to a deductible. In addition, you agree: (i) that the services of Payment Processors may be used to process transactions; (ii) to review and be bound by the Payment Processor's terms of use and privacy policy; (iii) to only provide valid and current information for yourself; and (iv) that all payments made are final and non-refundable. You acknowledge that you may need to hold, or register, an active account with the Payment Processor. We are not responsible or liable for any activities or conduct of a Payment Processor, and you agree that you shall have no claim, suit or demand of any kind, and by agreeing to these Terms, hereby irrevocably and completely waive any such claim, suit or demand of any kind, to the extent such may exist or hereafter arise, towards us and any of our managers, directors, officers, shareholders, partners, affiliates, employees, consultants, service providers and/or any other person or entity acting on our behalf, in connection with or related to the conduct or any act or omission of a Payment Processor
8. Data Management
8.1. You are aware and agree: (i) to the terms of the Privacy Policy, which set forth and describe how Omnivati collects and processes your information when you subscribe and use the Services; and (ii)(a) that Omnivati has no obligation to review any information that Omnivati collects for its accuracy or completeness, or for their potential violation of any third party rights and/or violation of any privacy rights, and/or to check or monitor any such contents for any of the foregoing before or during any provision of Services thereof, and (b) that you bear the entire responsibility and liability in connection with such information and/or their transference, use and analysis (including without limitation, to obtain any applicable third-party consent to the extent required under applicable laws).
8.2. Without derogating from any of Omnivati’s rights and remedies under the Agreements and/or under applicable law, Omnivati will be entitled, at its sole discretion, to immediately discontinue the Services or any part thereof in the event of any alleged infringement, misappropriation or violation of any rights of any third parties in connection with such information.
8.3. Security Measures. Omnivati implements commercially reasonable physical, technical, administrative and organizational safeguards to protect data against unauthorized processing and against accidental loss or destruction in accordance with accepted industry security practices. Omnivati shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
9. Term and Termination
The term of the Agreements shall commence as of the date on which you provide us with your consent to be bound by the Agreements and will continue to apply to you until terminated by either you or Omnivati. You acknowledge and agree that the perpetual license granted by you in relation to the Submissions, is irrevocable and will therefore continue after expiry or termination of any of the Agreements, for any reason. Omnivati or you may terminate the Agreement, at any time, for any or no reason. If Omnivati or you terminate the Agreement, you agree that we shall have no liability or responsibility to you, to the fullest extent permitted under applicable law. Please note that termination of the Agreement shall not affect any provisions of the Agreement which are expressly or by implication intended to come into force or continue in force on or after such termination.
10. Services - Disclaimer of Warranty; Warranty; and Limitations of Liability
10.1. Omnivati does not warrant nor make any representation regarding the results, performance correctness, accuracy, completeness, reliability or otherwise of the Services and/or any information provided by Omnivati. You are aware that the use of the Services depends and relies on third-party service providers and third-party products, services and infrastructure engaged by Omnivati or yourself. A number of factors may impact the quality of your communications and use of the Services and may result in the failure of the Services communications, including, without limitation, the productivity, completeness, reliability of the: local network, firewall, internet service provider, the public internet and power supply. Any failure or slowdown or unavailability of the foregoing may directly or indirectly affect the manner in which the Services function. You are aware that any failure or slowdown or unavailability of third-party products, services, and infrastructure are beyond Omnivati’s control and Omnivati takes no responsibility for any disruption, interruption or delay caused by any failure of, or inadequacy in any of these items or any other items over which we have no control, including, but not limited to, failures or delays resulting from labor disputes, strikes, lockouts, war, terrorism, riot, or acts of God.
10.2. Except for the limited warranties set forth herein, the Services and/or components provided therein are provided "AS IS" and "AS AVAILABLE" basis. You shall be solely responsible for any and all acts or omissions taken or made in reliance on the Services. To the fullest extent permitted by law, Omnivati its officers, directors, employees, and agents disclaim any and all other warranties, whether express or implied, including, without limitation, any implied warranties of merchantability, title, fitness for a particular purpose or use, satisfactory quality, non-infringement, accuracy or completeness of the content of the Services or contents of any sites linked to the Services, that any data stored with Omnivati will be secure or otherwise not lost or damaged, or that the Services will be uninterrupted or error free. No oral or written information or advice given by Omnivati, its employees, distributors, dealers or agents shall increase the scope of the above warranties or create any new warranties.
10.3. Omnivati makes no warranties or representations about the accuracy or completeness of the Services and assumes no liability or responsibility for any:
10.3.1. Errors, mistakes, inaccuracies, non-suitability or non-conformity of any content.
10.3.2. Direct, indirect, special, incidental, punitive or consequential damages including without derogating personal injury, property damages and/or monetary damages, of any nature whatsoever, arising out of the use of or the inability to use the Services;
10.3.3. Any unauthorized access to or use of Omnivati’s servers and/or any and all personal information and/or financial information stored therein.
10.3.4. any interruption or cessation of transmission to or from the Platform;
10.3.5. any bugs, viruses, Trojan horses, or the like which may be transmitted to or through the Services by any third party;
10.3.6. the quality of any information, or other material obtained by you through the Services;
10.3.7. Any errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, e-mailed, transmitted, or otherwise made available via the Services.
10.3.8. any content which is published, displayed and/or suggested through the Services, its integrity, accuracy and/or reliability; or
10.3.9. Damages and losses due to the operation, failure or slowdown or unavailability of third-party products, services and infrastructure.
10.4. Without detracting from the above, Omnivati or anyone on its behalf shall not be liable toward yourself or any third parties for indirect, direct, special, incidental, consequential or punitive damages, including, without limitation, any damage or injury to business earnings, lost profits or goodwill, business interruption, loss of business information, and/or personal injury, suffered by any person arising from and/or related with and/or connected to the use of or the inability to use the Services and any materials and/or components provided therein, regardless of the cause and whether arising in contract (including fundamental breach), tort (including negligence) or otherwise,
10.5. Notwithstanding anything to the contrary herein, under no circumstances will Omnivati or anyone on its behalf’s aggregate liability towards yourself from all causes of action of any kind, including without limitation contract, tort, negligence, strict liability, breach of warranty, or otherwise, arising out of or related to this Agreement, exceed the fees actually paid to Omnivati under the Agreements.
11. Indemnification
11.1. To the fullest extent permitted by applicable law, you shall defend, indemnify and hold Omnivati, its affiliates, and their respective officers, employees and agents, harmless from any and all claims, suits, demands, or proceedings brought against Omnivati by a third party insofar and to the extent that such claims are due to or arise out of:
11.1.1. your misuse or modification of the Services;
11.1.2. any representation or warranty made by yourself concerning the quality, performance or other characteristics of the Services, inconsistent with the Agreements;
11.1.3. infringement made by yourself, anyone on your behalf or under its permission, of intellectual property of any third party;
11.1.4. a breach of your undertakings, representations, and warranties contained herein and/or breach of the terms of the Agreements or any applicable laws;
11.2. Omnivati reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify Omnivati, and you agree to cooperate with Omnivati in defense of such claims. You further agree not to settle any such claim without Omnivati’s prior written consent.
12. Notices
Notices to you may be made via the App and/or email or published on the Agreements. Omnivati may also provide notices of changes to the Agreements or other matters by displaying notices or links to notices to you generally on the Services. You agree that all agreements, notices, disclosures and any other communications that Omnivati provide as aforementioned satisfy any applicable legal requirements that such communications be in writing.
13. General
By using or accessing the Services, you agree that the laws of the State of Indiana, USA, without regard to principles of conflict of laws and regardless of your location, will govern these Terms and any dispute of any sort that might arise between you and Omnivati. Any claim or dispute between you and Omnivati that arises in whole or in part from your use of the Services shall be decided exclusively by a court of competent jurisdiction located in the State of Indiana, USA, to the exclusion of any other courts, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non-convenient with respect to venue and jurisdiction in the courts of the State of Indiana, USA. Omnivati reserves the right to amend these Terms at any time and without notice, and it is your responsibility to review these Terms regularly for any changes. Nothing contained herein shall be deemed to create a joint venture, partnership, or agency relationship between Omnivati (and anyone on its behalf) and yourself. Please note that a failure of Omnivati to enforce any right granted herein or to take action against you in the event of any breach of these Terms shall not deemed a waiver on our behalf as to subsequent enforcement of rights or subsequent actions in the event of future breaches. YOU AND OMNIVATI AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.