Odeia Terms of Service

These Odeia Terms of Service ("TOS") between you ("Client") and Odeia ("Odeia"), as updated from time to time, and together with the documents and policies referred to herein (collectively, the "Agreement"), govern Client's access to and use of the Odeia Service, the Odeia Software, and the Odeia Content. By accessing or using the Odeia Services in any manner, Client is agreeing to the Terms of Service.

Terms of Service

These Odeia Terms of Service ("TOS") between you ("Client") and Odeia("Odeia"), as updated from time to time, and together with the documents and policies referred to herein (collectively, the "Agreement"), govern Client's access to and use of the Odeia Service, the Odeia Software, and the Odeia Content. By accessing or using the Odeia Services in any manner, Client is agreeing to the Terms of Service.

 

1. ODEIA SERVICE

1.1 Odeia Service Subscriptions. Odeia Service Subscriptions. Odeia will make the Odeia Service available to Client during the Subscription Term identified on the Order. Unless indicated otherwise in the Order, the Subscription Term and the Agreement will automatically renew for: an additional period of time equal to the length of the initial Subscription Term, unless one party notifies the other of its intent not to renew: (i) in the case of annual or longer Subscription Terms, at least thirty (30) days in advance of the expiration of the Subscription Term or then-current renewal period, or (ii) in the case of shorter than annual Subscription Terms, at least ten (10) days in advance of the expiration of the Subscription Term. Odeia will provide standard support for the Odeia Service to Client during the Subscription Term at no additional charge. Odeia's standard support terms are available at www.Odeia.theater/support-terms.php. During the Subscription Term and any subsequent renewal periods, Odeia will use commercially reasonable efforts to make the Odeia Service available according to Odeia's Service Level Schedule, which is available at www.Odeia.theater/sla.php, and subject to planned downtime and any unscheduled emergency maintenance according to Odeia's Maintenance Policy referenced in the Odeia Service Level Schedule.

1.2 Trials of Odeia Service. Odeia may make the Odeia Service, or specific features and functions available without charge, for limited periods of time for evaluation purposes. Trial use to evaluate the use of Odeia Service, or specific features and functions will be for the term specified by Odeia. Client acknowledges that the free Odeia Service or Odeia Applications may have limited features, functions, indexing capacity, account storage or other limitations. Notwithstanding anything in these TOS to the contrary, Client understands and acknowledges that the provisions of Section 10 do not apply to a free trial of the Odeia Service.

 

2. CLIENT USE OF THE ODEIA SERVICE

Client may only access and use the Odeia Service, Odeia Applications and Odeia Software in accordance with the terms of the Agreement. Client agrees to provide true, accurate and complete information when Client registers for and uses the Odeia Service and agrees to update any account information promptly. Odeia may suspend or terminate Client's account for failure to provide and maintain accurate, current and complete account information. Each person who uses the Odeia Service must have a separate username and password. Administrative and Management users must provide a valid email address for each person authorized to use Client's account, and Client may only create one account per email address. Client must provide any other information requested by Odeia in order to complete the registration process.

 

2.1 Purchased Volumes. The Odeia Service and any Odeia Applications licensed to Client for use with the Odeia Service, are provided to Client according to the capacity, usage and storage volumes Client purchases, as listed on the Order. If Client exceeds such volumes purchased, then promptly upon Odeia's request, Client agrees to execute an Order for such additional volume, as may be applicable, payable pursuant to Section 3.

2.2 Transmissions of Client Content. Client is responsible for obtaining and maintaining all telecommunications, broadband and computer equipment and services needed to access and use the Odeia Service and for paying all charges related thereto. Client is the owner and/or controller of all of Client Content that Client transmits to the Odeia Service. Client is responsible for the security of Client Content when transmitted to and from the Odeia Service, including any additional encryption of any Client Content transmitted to and from the Odeia Service, or stored on the Odeia Service.

2.3 Client Responsibility for Users and Client Content. Client is solely responsible for: (a) Users' compliance with the Agreement, (b) the accuracy, quality and legal use of Client Content and the means by which Client acquired Client Content (including without limitation Client Data), and (c) taking steps to maintain appropriate security, protection, and backup of Client Content, (which may include the use of encryption technology to protect Client Content from unauthorized access), and routine archiving of Client Content. Client is responsible for securing, protecting and maintaining the confidentiality of Client's account username, passwords and access tokens. Client may not share Client passwords or access codes with a third party. Client is responsible for any access and use of the Odeia Service via Client's or its Users' accounts and for all activity that occurs in connection with Client's or its Users' accounts, regardless of whether the activities were undertaken by Client, a User or a third party. Odeia will not be liable for any loss or damage arising directly or indirectly from Client's failure to maintain the security of Client's account and password or for unauthorized access to Client's account. Client agrees to notify Odeia immediately if Client believes that an unauthorized third party may be using Client's account or if Client's account information is lost or stolen. Client agrees to not transmit or store within the Odeia Service: (i) any protected health data, as defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") as amended and supplemented by the Health Information Technology for Economic and Clinical Health Act, including the HIPAA omnibus final rule; (ii) financial information protected under the Gramm-Leach-Bliley Act; or (iii) information protected by the International Traffic in Arms Regulations ("ITAR"), or export-controlled as provided in Section 11.

2.4 Odeia Applications from Odeia. There are certain Odeia Applications available that the Client may elect to license and use in connection with the Odeia Service. A list of such Odeia Applications, (including some Odeia Applications that may only be licensed from Odeia with the additional purchase of professional services under Odeia's standard terms).

2.5 Third Party Content or Resources. Third Party Content is not considered part of the Odeia Service and is not supported by Odeia. The Odeia Software may contain features or functions that enable the interoperation of the Odeia Service with Third Party Content. To use such features or functions, however, Client may be required to obtain access separately to such Third Party Content from their respective providers, and Client may be further required to grant Odeia access to Client accounts with such providers. If Client installs or enables (or directs or otherwise authorizes Odeia to install or enable) Third Party Content for use with the Odeia Service, Client hereby authorizes Odeia to allow the provider of such Third Party Content to access Client Data as necessary for the interoperation of such Third Party Content with the Odeia Service. Client agrees that Odeia is not responsible or liable for disclosure, modification or deletion of Client Data resulting from access to Client Data by such Third Party Content, nor is Odeia liable for any damages that Client may incur, directly or indirectly, as a result of Client use of, and/or reliance upon, any Third Party Content, sites or resources.

2.6 Hardware. Odeia does not support or provide warranties for any third party hardware, including but not limited to operating systems, software, card readers, printed cards, printers, computers, mobile devices, network equipment or broadband services – please contact your supplier or manufacturer for assistance, service or support.

2.7 Balance Obligations. Client agrees to accept full responsibility to provide current and up-to-date customer policies and to comply with any rules, statutes, regulations or policies set forth by state, federal, national or international law including, but not limited to outstanding balances, fees, decrementing of balances and/or the surrendering of unclaimed property. Odeia will be held harmless where disputes occur between Client and Customer regarding policies, balances, points or transactions. As a reference to specific laws and regulations contact your state.

2.8 Communications. We reserve the right to send messages to you to inform you of (a) changes or additions to the Site, the Products, this Agreement or the Fee Schedule (defined below), (b) violations of this Agreement or actions relating to your privilege to access and use the Site or the Products, (c) any other matter related to the Site, the Products or this Agreement or (d) for marketing and other purposes. Nothing in this provision shall require or obligate us to send any notice if no notice is required or mandated elsewhere in this Agreement. You may unsubscribe from our marketing communications at any time, although you will continue to receive transactional messages from us. You agree that we may, but are not obligated to, monitor or record any of your telephone conversations and chat texts with us for quality control purposes, for purposes of training our employees and for our own protection. You further agree that any Account Users or anyone else you authorize to use your account consents to such monitoring or recording as well. You acknowledge that not all telephone lines or calls are recorded by us and that we do not guarantee that recordings of any particular telephone calls will be retained or are capable of being retrieved. BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT WE MAY CONTACT YOU VIA TELEPHONE (EITHER BY A LIVE PERSON, AUTOMATIC DIALER, PRERECORDED MESSAGE OR A COMBINATION OF THE FOREGOING) TO DISCUSS THE PRODUCTS AND YOU CONSENT TO SUCH CONTACT. FURTHER, YOU CONSENT TO RECEIVE SUCH PHONE CALLS AT THE TELEPHONE NUMBER YOU ENTERED ON THE SITE. You do not need to agree to this provision in order to use the Application or the API and if you would like us not to contact you by telephone, please send an email to support@Odeia.io. Upon request, we may also contact you via telephone (including by automatic dialer or prerecorded message) or text you in order to provide you with your password or other information you request.

2.8 Prohibition on Spam; The Application and API may not be used for the sending of unsolicited email messages (sometimes called "spam"). All messages sent by means of the application or the API shall be in compliance with our Anti-Spam Policy. You are responsible for ensuring that your use of the Application and the API do not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of the Application and the API if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. As a matter of privacy, we will not share with you information about those recipients who complain about your use of the Products or file a spam report against you. You agree to import, access or otherwise use only contact lists in connection with the Application and the API for which all listed parties have consented to receive correspondence from you. We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email from entering, utilizing or remaining within our network.

 

3. PAYMENTS

3.1 Fees and Taxes. Client agrees to pay all fees and charges specified in the Orders. Subscription licenses to the Odeia Service, the Odeia Software, and associated fees incurred are non-cancelable and non-refundable. Overdue charges will accrue interest monthly at the rate of 10% of the then-outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower. Charges must be paid in advance, either annually or in accordance with any different billing period stated in the Order. All payments are due and payable either within thirty (30) days from the date of Odeia's invoice or such other period, if any, stated in the Order. All fees and charges quoted are exclusive of applicable taxes and duties, including any applicable sales and use tax. Client is responsible for paying any taxes assessed based on Client's purchases under the Agreement.

3.2 Credit Card Payments. If Client is permitted to pay by credit card, Client: (i) will provide Odeia with valid credit card information, (ii) hereby authorizes Odeia to charge such credit card for all items listed in the Order for the initial Subscription Term, and any renewal term(s). Such charges shall be paid in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. Client is responsible for providing complete and accurate billing and contact information and notifying Odeia in a timely manner of any changes to such information.

4. PROPRIETARY RIGHTS AND LICENSES

4.1 Odeia Ownership; As between Client and Odeia, Odeia owns and reserves all right, title, and interest in and to the Odeia Service, the Odeia Software, the Odeia Applications and the Odeia Content, including all intellectual property rights therein. No rights are granted to Client hereunder other than as expressly set forth herein. Client grants to Odeia a perpetual, irrevocable, worldwide, nonexclusive, transferable, sub-licensable right and license to commercially exploit in any manner Odeia deems fit any Suggestions or feature requests that the Client provides to Odeia.

4.2 License to Odeia Service, Odeia Software and Odeia Content. Subject to Client's continued compliance with the terms and conditions of this Agreement, including timely payment of the fees set forth in the applicable Order, Odeia grants Client a limited, revocable, non-exclusive, non sub-licensable, non-transferrable license to do the following solely during the Subscription Term:

  1. Access and use the Odeia Service for Client's internal business purposes, which does not include the provision of services for the benefit of third parties. Client may not access or use the Odeia Service in order to monitor its availability, performance, or functionality for competitive purposes. (ii) Use the Odeia Applications that Client has licensed and installed, or has licensed and directed Odeia to install on Client's behalf, solely in connection with Client's permitted use of the Odeia Service. (iii) Use the Odeia Content, solely in connection with Client's permitted use of the Odeia Service. You agree to assume full responsibility for the performance of any and all such Client Apps. Client shall retain all right, title and interest to the Client Apps, subject to Odeia's underlying interest in the Odeia Software, Odeia Service and Odeia API(s) if they are made available to you.

4.3 License Restrictions. The granting of rights to Client in Section 4.2 is subject to the following restrictions and limitations: Client will not, and will not permit any third party to: (a) reverse engineer (except to the extent specifically permitted by statutory law), decompile, disassemble or otherwise attempt to discover source code, object code or underlying structures, ideas or algorithms of the Odeia Service, the Odeia Software, the Odeia Content or any software, documentation or data related to the Odeia Service, Odeia Software or Odeia Content, (b) modify, translate or create derivative works based on the Odeia Service, Odeia Software or Odeia Content, (c) use the Odeia Service, Odeia Software or Odeia Content for any purpose other than its own internal purposes; or (d) use the Odeia Service, the Odeia Software, or Odeia Content other than in accordance with the Agreement and in compliance with all applicable laws and regulations (including but not limited to any applicable privacy and funds handling regulations).

4.4 License to Use. Client agrees to use the Odeia per the terms of the licensing structure set forth by Odeia. Odeia are licensed to a single location. A location is defined as, and limited to a single department, office, mobile vehicle, cart, shop, or any similar situation that will process transaction for the Clients Customers. Violation of the terms will lead to account suspension and/or termination without refunding of any remaining balances. Odeia reserves the right collect for unlicensed use of the software as permitted by law. Additional penalties and prosecution could be assessed by local, state or federal authorities for violations of these terms.

 

5. CLIENT CONTENT

5.1 Ownership. By submitting or posting Client Content on the Odeia Service, Client is representing that Client is the owner of such materials and/or has the necessary rights, licenses, and authorization to distribute it.

5.2 Access to and Use of Client Content. By submitting or posting Client Content on areas of the Odeia Service, Client grants Odeia a worldwide, royalty free, non-exclusive license to access and use such Content on the Odeia Service for the purpose of providing the Odeia Service to Client, responding to Users' request for technical assistance with respect to the Odeia Service, or at Client's request, in connection with Client support matters.

5.3 Security and Protection of Client Data. Odeia will maintain administrative, physical and technical safeguards to protect the security of Client Data.

5.4 No Guarantee of Accuracy; Supplier does not guarantee any accuracy with respect to any information contained in any Client Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the Odeia Services. You understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that Client, and not Supplier, is entirely responsible for all Client Data that is uploaded, posted, transmitted, or otherwise made available through the Odeia Services, as well as for any actions taken by the Suppliers or other Clients or Users as a result of such Client Data.

5.5 Unlawful Client Data; Supplier is not obliged to pre-screen, monitor or filter any Client Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Client Data or the action of its unlawful processing is discovered or brought to the attention of Supplier or if there is reason to believe that certain Client Data is unlawful, Supplier has the right to:

 

  1. notify the Client of such unlawful Client Data;

  2. deny its publication on the Web Site or its insertion to the System;

  3. demand that the Client bring the unlawful Client Data into compliance with these Terms and applicable law;

  4. temporarily or permanently remove the unlawful Client Data from the Web Site or Account, restrict access to it or delete it.

If Supplier is presented convincing evidence that the Client Data is not unlawful, Supplier may, at its sole discretion, restore such Client Data, which was removed from the Web Site or Account or access to which was restricted.

In addition, in the event Supplier believes in its sole discretion Client Data violates applicable laws, rules or regulations or these Terms, Supplier may (but has no obligation), to remove such Client Data at any time with or without notice.

Without limiting the generality of the preceding sentence, Odeia complies with the Digital Millennium Copyright Act, and will remove Client Data from the Platform upon receipt of a compliant takedown notice.

5.6 Compelled Disclosure; Supplier may disclose a Client’s confidential information to the extent compelled by law to do so. In such instance, Supplier will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure. If Supplier is compelled by law to disclose Client’s confidential information as part of a civil proceeding to which Supplier is a party, and Client is not contesting the disclosure, Client will reimburse Supplier for its reasonable cost of compiling and providing secure access to that confidential information.

5.6 Offensive Content & Use; Client agrees to NOT upload or display any content that: (a) contains nudity, sexually graphic content, drug use (implied or literal), or material that is otherwise deemed explicit, or in poor taste by Odeia; or (b) content that contains threatening, abusive, harassing, defamatory, libelous, invasive, hateful, or racially, religiously, ethnically or otherwise objectionable. Further, client agrees NOT to use Odeia to sell tickets for, raise donations, create registration for any organization or event involved in the above. Doing so will result in removal of your campaigns(s) and immediate termination of your account. Odeia reserves the right to refuse service to any campaign it deems to be in poor taste.

 

6. TERMINATION; SUSPENSION

6.1 Termination for Convenience. Client may terminate Client's account and/or stop using the Odeia Service at any time and for any or no reason by notifying Odeia of Client's termination of Client's account. Odeia will provide Client at least thirty (30) days' advance notice of any material change to Odeia Service or of its intent to discontinue the Odeia Service. There are no refunds for termination for convenience. At the end the Subscription Term, due to expiration or termination, Client access to the Odeia Service will be discontinued.

6.2 Suspension or Termination for Cause. A party may terminate this Agreement for cause if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the cure period specified in this section. In the case of annual Subscription Terms, the cure period is thirty (30) days from the date of notice, and in the case of Subscription Terms shorter than one (1) year, the cure period is ten (10) days.

6.3 Effect of Termination. Upon termination of Client's account or subscription to the Odeia Service:

  1. All Client rights under this Agreement will immediately terminate;

  2. Client will lose all access to the Odeia Service, including access to Client's account and Client Content;

  3. Client will immediately return or, if instructed by Odeia, destroy all Odeia Content in Client's possession or control; and

  4. Any licenses to Odeia Software and Odeia Content will terminate.

6.4 Return of Client Content. Upon request by Client made before the effective date of termination of a Odeia Service subscription, Odeia may assist Client with the transition of Client Content for a fee. Ten (10) days following expiration or termination of Client's Cloud Service account or subscription, Odeia shall have no obligation to maintain or provide any of Client Content and Client hereby authorizes Odeia thereafter to delete all Client Content that is in its possession or under its control, unless Odeia is otherwise legally prohibited from doing so.

6.5 Prohibited Uses. By using Odeia Products and or using your credit card processing account as a Merchant, you also confirm that you will not accept payments or use the Service in connection with the following activities, items or services:

  • Adult or adult-related content, including performers or “cam girls”

  • Airlines

  • Alimony, child support, or other court-ordered payments

  • Bath salts and herbals

  • Buyers clubs, discount clubs or membership clubs

  • Check cashing, or payment for a dishonored check or for an item deemed uncollectible by another merchant

  • Computer repair or maintenance services, such as antivirus programs

  • Cruise lines

  • Credit counseling or credit repair agencies

  • Credit protection or identity theft protection services

  • Counterfeit or possibly counterfeit goods, such as designer handbags, clothing and accessories, and consumer electronics

  • Debt collection, consolidation, or reduction services

  • Digital goods including digital currency

  • Direct marketing of subscription offers

  • Distressed Property Sales and Marketing

  • Door to door sales

  • Drugs, alcohol, or drug paraphernalia, or items that may represent them

  • Doctor assisted suicide, abortion and any other activity that ends human life

  • Factoring, liquidators, bailiffs, bail bondsmen

  • Financial services, such as cash advances, bill payment, loans, prepaid cards, wire transfers, or sales of money orders or foreign currency

  • Gambling or betting, including lottery tickets, casino gaming chips, off-track betting, fantasy football, memberships on gambling-related internet sites and wagers at races

  • Hate, violence, racial intolerance, or the financial exploitation of a crime

  • Infomercial merchants

  • Internet pharmacies or pharmacy referral sites

  • Inbound or outbound telemarketing businesses including lead generation businesses

  • Licensed or franchised goods or services, such as Apple products

  • Live animals

  • Magic, enchantment, sorcery or other forms of yet-to-be-explained science

  • Medical equipment

  • Multi-level marketing businesses, pyramid or Ponzi schemes

  • Obscene or pornographic items

  • Pharmaceuticals, including medical marijuana

  • Prepaid phone cards or phone services

  • Prostitution, escort services, massage parlors, and other potentially sexually related services

  • Real estate or motor vehicle sales

  • Rebate or upsell programs

  • Scrip-dispensing terminal

  • Sexually explicit content, events that coordinate sexual encounters or encourage sexual interactions with other individuals.

  • Timeshares, timeshare resales and related marketing

  • Tobacco, cigarettes, or e-cigarettes

  • Unlawful activities or items, or activities or items that encourage, promote, facilitate or instruct others regarding the same

  • Violent acts towards self or others, or activities or items that encourage, promote, facilitate or instruct others regarding the same

  • Weapons, including replicas and collectible items, or ammunition or other accessories

  • Weight loss programs

You will not accept payments by American Express card in connection with the following activities, items, or services:

  • Equities (including stocks, bonds, or any other ownership position in a corporation)

  • Goods or services to be delivered more than four (4) months in the future, with an intention of gaining return on investment

  • Internet auctions

  • Political parties

  • Telecommunications (including wireless, cable, satellite, wireline, and ISP)

  • Travel industry (including car rental, lodging, and other travel tour operators)

In addition, you may not use the Service for:

  • Collecting and storing credit card number, expiration date, or cvv outside the billing fields that work directly with payment providers. You cannot request, store and save this information in any manner that is outside the billing protocols. Violators will have their accounts terminated and the data expunged.

  • Collecting, storing and saving full social security numbers.

  • Impersonating any person or entity or falsely claiming an affiliation with any person or entity;

  • Collecting, or attempting to collect, personal information about users or third parties without their consent, or using such information except as necessary to use the Service;

  • Sending unsolicited offers, advertisements, proposals, or junk mail or spam to others. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signature;

  • Accepting payments for goods or services provided by someone other than you;

  • Providing yourself or others with a cash advance from a credit card;

  • Any illegal purpose, or violating any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation, and data collection and privacy;

  • Defaming, harassing, abusing, threatening, or defrauding others;

  • Posting, transmitting, or distributing content that is false, misleading, unlawful, obscene, indecent, lewd, pornographic, hateful, abusive, inflammatory, or that violates the rights of others (including rights of publicity or privacy);

  • Damaging, disabling, overburdening, or impairing Odeia, including without limitation, using the Service in an automated manner;

  • Interfering with another user’s enjoyment of the Service, by any means, including by uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code;

  • Competing with Odeia, or Odeia’s business partners;

  • Sending or receiving what Odeia considers to be funds for something that may have resulted from fraud or other illegal behavior;

  • Abusing the payment card system or violating the Operating Regulations, in the reasonable opinion of the Networks;

  • Acting as a money services business or money transmitter;

  • Transferring funds between bank accounts held in the same name;

Creating an Account that is linked to another Account that has engaged in any of the foregoing activities. Odeia may use evidence other than your Account information to determine whether you control an Account in someone else’s name, including but not limited to Internet Protocol addresses, common business names, phone numbers, and mailing addresses.

If Odeia determines that you have received funds resulting from fraud or a prohibited activity, those funds may be frozen, returned to the Purchaser, or seized.

 

7. CONFIDENTIALITY

7.1 Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party will: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have confidentiality obligations to the Receiving Party containing protections no less stringent than those herein.

7.2 Compelled Disclosure of Confidential Information. Notwithstanding the foregoing terms of Section 7.1, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

 

 

8. DISCLAIMER OF WARRANTIES

THE ODEIA SERVICE IS PROVIDED TO CLIENT ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ODEIA DISCLAIMS ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS WITH RESPECT TO THE ODEIA SERVICE, INCLUDING ANY REPRESENTATIONS OR WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT AND TITLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. TO THE EXTENT SUCH A LAW APPLIES TO CLIENT, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CLIENT, AND CLIENT MAY HAVE ADDITIONAL RIGHTS.

9. LIMITATION OF LIABILITY

ODEIA AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE "ODEIA ENTITIES") SHALL NOT BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT, DATA, SECURITY OF DATA, OR LOSS OF OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF A ODEIA ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE ODEIA ENTITIES SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY OR DAMAGES ARISING IN CONNECTION WITH OR RESULTING FROM: (I) CLIENT USE OR INABILITY TO USE THE ODEIA SERVICE, INCLUDING AS A RESULT OF ANY: (A) TERMINATION OR SUSPENSION OF CLIENT ACCOUNT, (B) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS, (C) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR GOODS; OR (D) ANY INVESTMENT, EXPENDITURE, OR COMMITMENT BY CLIENT IN CONNECTION WITH THIS AGREEMENT OR CLIENT USE OF OR ACCESS TO THE ODEIA SERVICE; (II) ANY CHANGES MADE TO THE ODEIA SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE ODEIA SERVICE OR ANY PART THEREOF; (III) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DELETION OF CLIENT CONTENT; (IV) THE DELETION OF, DESTRUCTION, DAMAGE, LOSS, CORRUPTION OF, OR FAILURE TO STORE, SEND OR RECEIVE ANY CLIENT CONTENT, TRANSMISSIONS OR DATA ON OR THROUGH THE ODEIA SERVICE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE ODEIA SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE ODEIA SERVICE.

IN ANY CASE, THE AGGREGATE LIABILITY OF THE ODEIA ENTITIES UNDER THIS AGREEMENT OR ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT THAT CLIENT ACTUALLY PAID ODEIA UNDER THIS AGREEMENT FOR THE ODEIA SERVICE AND/OR THE ODEIA SOFTWARE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. TO THE EXTENT SUCH A LAW APPLIES TO CLIENT, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO CLIENT, AND CLIENT MAY HAVE ADDITIONAL RIGHTS.

 

10. INDEMNITY

10.1 Indemnification by Odeia. Odeia will defend Client, and pay all damages (including attorneys' fees and costs) finally awarded against Client, or that are agreed to in a court-approved settlement, to the extent a claim, demand, suit or proceeding is made or brought against Client by a third party (including those brought by the government) alleging that the Odeia Software infringes or misappropriates such third party's United States patent, copyright, trademark or trade secret (a "Client Claim"), provided that Client: (i) provides Odeia with prompt written notice of the Client Claim, (ii) gives Odeia sole control of the defense and settlement of the Client Claim (except that Odeia may not settle any Client Claim that requires any action or forbearance on Client's part without Client's prior consent, which Client will not unreasonably withhold or delay), and (iii) gives Odeia all reasonable assistance, at Odeia's expense. Odeia will have no obligation under the foregoing provision to the extent a Client Claim arises from Client breach of the Agreement, Client Content, Third Party Content, Odeia Content or the combination of the Odeia Software with: (a) Client Content, (b) Third Party Content (c) any software other than the Odeia Software, or (d) any hardware or equipment. Odeia may in its sole discretion and at no cost to Client: (1) modify the Odeia Service and/or Odeia Software so that it no longer infringes or misappropriates a third party right, (2) obtain a license for Client's continued use of the Odeia Software, in accordance with the Agreement, or (3) terminate this Agreement and refund Client any prepaid fees covering the unexpired Subscription Term.

10.2 Client Indemnity of Odeia. Unless expressly prohibited by applicable law, Client will defend, and pay all damages (including attorneys' fees and costs) finally awarded against Odeia, or that are agreed to in a court-approved settlement, to the extent a claim, demand, suit or proceeding is made or brought against a Odeia Entity by a third party (including those brought by a government entity) that: (i) alleges that Client Data, Client Content, Client Apps or Client's use of the Odeia Service infringes or misappropriates such third party's patent, copyright, trademark or trade secret, or violates another right of a third party, (ii) arises out of the activities of Users, (iii) alleges that Client Data, Client Content, Client Apps or Client use of the Odeia Service violates applicable law or regulation, or (iv) arises out of a dispute between Client and another Client of Odeia (each, "Odeia Claim"), provided that Odeia: (a) gives Client prompt written notice of the Odeia Claim, (b) gives Client sole control of the defense and settlement of the Odeia Claim except that Client may not settle any Odeia Claim that requires any action or forbearance on Odeia's part without Odeia's prior consent (that Odeia will not unreasonably withhold or delay), and (c) Odeia gives Client all reasonable assistance, at Client expense.

 

11. IMPORT & EXPORT CONTROL

The Odeia Service, the Odeia Software, and/or Odeia Content, or any feature or part thereof, may not be available for use in all jurisdictions, and Odeia makes no representation that the Odeia Service, the Odeia Software, and/or Odeia Content, or any feature or part thereof is appropriate or available for use in any particular jurisdiction. To the extent Client chooses to access and use the Odeia Service, the Odeia Software, and/or Odeia Content, Client does so at Client's own initiative and at Client's own risk, and Client is responsible for complying with any applicable laws, rules, and regulations. Client's and its Users' use of the Odeia Service, the Odeia Software, and/or Odeia Content is subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of other countries. Client and its Users will fully comply with all applicable customs and export control laws and regulations of the United States and any other country where Client or its Users use the Odeia Service, the Odeia Software, and/or Odeia Content. Client certifies that Client and its Users are not on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department's List of Specially Designated Nationals, and the Commerce Department's List of Denied Persons or Entity List. Client further certifies that Client or its Users shall not export, re-export, ship, transfer or otherwise use the Odeia Service, the Odeia Software, and/or Odeia Content in any country subject to an embargo or other sanction by the United States, including, without limitation, Iran, Syria, Sudan and North Korea, and that Client or its Users shall not use the Odeia Service, the Odeia Software, the and/or Odeia Content for any purpose prohibited by U.S. laws, including, but not limited to, nuclear, chemical, missile or biological weapons-related end uses. Client or its Users are prohibited from sending to Client's account any data or software that cannot be exported without prior written government authorization, including but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of this Agreement.

 

12. GENERAL TERMS

12.1 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Middle District of Florida, Orlando Division and the parties hereby consent to personal jurisdiction and venue therein. Odeia may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of intellectual property or other proprietary rights of Odeia, its Affiliates, or any third party. Neither the Uniform Computer Information Transactions Act ("UCITA"), nor the United Nations Convention for the International Sale of Goods shall apply to this Agreement.

12.2 Independent Contractors; No Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The third-party licensors of Odeia Content are express third-party beneficiaries of the Agreement. There are no other third-party beneficiaries of this Agreement

12.3 Amendment; Severability. This Agreement may only be amended by a written amendment signed by both parties, unless otherwise provided herein. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, invalid or unenforceable, the provision shall be modified by the court and interpreted so as best to accomplish the objectives and intent of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the remainder of the Agreement will remain in full force and effect.

12.4 Assignment. Client may not assign, delegate or sublicense any of Client's rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Odeia.

12.5 No waiver. The failure of Odeia to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision or of any other right or provision. All waivers must be in a signed writing to be effective.

12.6 Force Majeure. Odeia and its Affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Odeia's or its Affiliates', officers', directors', employees', agents', partners', or licensors' reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

12.7 Entire Agreement. This Agreement, which incorporates the Odeia Privacy Policy at http://Odeia.io/privacy.php, the Odeia Standard Support Terms, the Odeia Service Level Schedule, the Documentation and the Order, as well as the terms and documents referred to in each, constitutes the entire agreement between Client and Odeia and shall supersede any prior agreements between Client and Odeia concerning the Odeia Service, the Odeia Software, and/or Odeia Content (including, but not limited to, any prior versions of the Agreement) or any preprinted terms on a Client's Order. This Agreement does not amend any other separate agreement Client may have with Odeia for other software products or services that are not Odeia Services.

12.8 Notices to Client and Consent to Electronic Communications. Client consents to receiving electronic communications and notifications from Odeia in connection with Client's use of the Odeia Service and the Agreement. Client agrees that any such communication will satisfy any legal communication requirements, including that such communications be in writing. Odeia may provide Client with notices regarding the Odeia Service, including changes to this Agreement, by email to the email address of Client's administrator (and/or other alternate email address associated with Client Account if provided), by regular mail, or by postings on Odeia's website and/or the Odeia app. Notices that are provided by posting on the Odeia Site will be effective three (3) days after posting. Notices that are provided by email will be effective when Odeia sends the email. It is Client responsibility to keep Client email address current. Client will be deemed to have received any email sent to the email address then associated with Client's account when Odeia sends the email, whether or not Client actually receives the email.

12.9 Promotion. Client acknowledges that Odeia may use the client’s brand, logo or name in conjunction with case studies, customer examples, product showcases on Odeia’s website, email communication with customers, printed material and other promotional tools used by Odeia.

12.10 Survival. The following sections shall survive the termination or expiration of the Agreement: 2.2, 2.3, 2.5, 4.1, 5, 6.3, 6.4, and 7-12.

 

Updated: Feb 15, 2021