Terms and Conditions of OmniAgent Services:

These terms of use (“Terms of Use”), together with any Order Form (as defined below) and any other document incorporated by reference herein (collectively, the “Agreement”) form a binding legal agreement between either OmniAgent or its subsidiaries that have entered into an Order Form with Customer (as defined below) (“OmniAgent”, “us”, “we”, and “our”) and Customer. These Terms of Use govern Customer’s access to and use of our Services (as defined below). By using the Services (including the Site) in any way, or executing an Order Form, Customer hereby agrees to these Terms of Use.

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1. SERVICES; AVAILABILITY; PERFORMANCE; RESTRICTIONS

1.1. Definitions: The definitions used but not otherwise defined in the body of these Terms of Use are set out in Appendix A (Definitions).

 

1.2. Use of the OmniAgent Platform: Subject to Customer’s compliance and in accordance with this Agreement, OmniAgent will make available for the Order Form Term: (I) the Platform Services to Customer and the applicable Authorized Customer Users; and (ii) the OmniAgent APIs for Customer and the applicable Authorized Customer Users to access and interact with the Platform Services in accordance with the API Terms, in each case, as more particularly set out in the Order Form.

 

1.3. Services Updates: OmniAgent reserves the right to make changes and updates to the Services, provided such change does not materially degrade the Services. OmniAgent will inform Customer of any material changes or upgrades to the Services by sending an email notification or posting on the Platform Services.

 

1.4. Additional Services: OmniAgent will provide any professional services to Customer as (e) (f) may be set out in the Order Form or a SOW (collectively, the “Professional Services”).

 

1.5. Affiliate Use: An Affiliate of Customer may access and use the Services either as an Authorized Customer User of Customer or by executing an Order Form with OmniAgent whereby such Affiliate agrees to be bound by the terms of this Agreement directly with OmniAgent. Similarly, an Affiliate of Customer may receive Professional Services from OmniAgent under a Statement of Work between OmniAgent and Customer, or by executing a Statement of Work with OmniAgent whereby such Affiliate agrees to be bound by the terms of this Agreement directly with OmniAgent.

 

1.6. Use of Subcontractors: Customer agrees that OmniAgent may, from time to time, in its discretion engage third party subcontractors, including subprocessors, to perform Services. OmniAgent will be responsible for such third parties’ performance of the Services. A list of sub processors who process Customer Data is set out at: https://www.omniagent.in/legal/subprocessors

 

1.7. Customer Responsibilities: Customer will:

    1.7.1. be solely responsible for all use of the Platform Services and related documentation under Customer user accounts;

    1.7.2. not transfer, resell, lease, license, or otherwise make available the Platform Services to third parties, excluding Authorized Customer Users, (except to make the Bot available to End Users as contemplated in the Order Form) or offer them on a standalone basis;

    1.7.3. use the Platform Services only in accordance with this Agreement, the Acceptable Use Policy, the Service Specific Terms, the applicable related documentation, any applicable Order Form, and any applicable laws or regulations;

    1.7.4. be solely responsible for all acts, omissions, and activities of Authorized Customer Users and End Users, including:

        1.7.4.1. their question and answer flows within the Bot and any Customer Data that Customer chooses to process in the Bot;

        1.7.4.2. their compliance with this Agreement, the Acceptable Use Policy, the Service Specific Terms, the applicable related documentation, any applicable Order Form; and

        1.7.4.3. applicable law or regulation;

    1.7.5. be solely responsible for any and all Customer Data provided under these Terms of Use, including obtaining all necessary licenses, permissions and consents to enable all material comprising Customer Data, excluding Outputs, to be made available to OmniAgent for OmniAgent to transmit, host and store. For greater certainty, Customer will make any disclosures in its privacy notices, or as otherwise required under law, regarding Customer’s use of the Services to collect and process Customer Data (such as disclosing use of a virtual third-party chatbot, generative artificial intelligence and/or storage of chat conversations);

    1.7.6. ensure that use of the Services by End Users is subject to Customer’s own user agreement, which must contain provisions prescribing that: (A) End Users disclaim any liability on the part of OmniAgent; and (B) End Users are responsible for independently verifying the Outputs made by the Services and acknowledge and understand that they should not rely on the accuracy of such Outputs, as they may be false, misleading, or not reflective of the most current or up-to-date information; and

    1.7.7. use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify OmniAgent promptly of any such unauthorized access or use.

 

1.8. Third Party Products and Services. Certain features of the Services provide the option of integration with third party products and services, such as third-party APIs, that Customer chooses to use with the Services (“Third-Party Products and Services”). Accordingly, Customer acknowledges that such Third-Party Products and Services are unaffiliated with OmniAgent and agrees that the availability and performance of certain features will be subject to the availability and performance of such Third-Party Products and Services for which Customer is responsible for, including abiding by any licenses or agreements Customer has accepted with respect to such Third-Party Products and Services.

 

1.9. Third Party Features: If OmniAgent has identified that a specific feature of the Services is reliant on third party technology in an Order Form or a SOW, Customer will accept and comply with the license terms applicable to such third-party technology that have been identified by OmniAgent in such Order Form or SOW. If Customer does not agree to abide by the applicable license terms for any such third-party technology, then Customer will not access or use the applicable feature. Any exchange of data between Customer and any such provider of third-party technology is solely between Customer and the applicable third-party technology provider. OmniAgent does not warrant or support such third-party technology, or guarantee the availability or usability of any such feature provided through such third-party technology.

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2. OWNERSHIP OF IP AND DATA

 

2.1. Ownership of Customer Data: As between Customer and OmniAgent, Customer owns all right, title and interest in and to Customer Data. Customer hereby grants OmniAgent and its Affiliates a worldwide, royalty-free, and non-exclusive license to access Customer Data in order to: (i) provide, maintain, and improve the Services for Customer; (ii) perform the obligations set out in this Agreement or required under applicable laws; and (iii) create aggregated and de-identified information that does not contain Personal Information (“Aggregated and Statistical Information”). OmniAgent may use, process, store, disclose, transfer, transmit, copy, modify and display the Aggregated and Statistical Information for any purpose and without restriction or obligation to Customer of any kind. Aggregated and Statistical Information is not considered to be Customer Data and is not Customer’s Confidential Information. Nothing in this Agreement shall restrict OmniAgent from using Inputs for its own purposes, or for other customers, where such Inputs are generic in nature and do not include Confidential Information of Customer.

 

2.2. Ownership of Services; OmniAgent Models: OmniAgent owns all right, title, and interest, including Intellectual Property Rights, in and to: (i) the Services, including any OmniAgent Models comprising thereof; (ii) Aggregated and Statistical Information; (iii) any materials or work product developed or provided by OmniAgent to Customer under an Order Form or a SOW including as part of the Professional Services (unless otherwise stated in the SOW); and (iv) any changes, updates, enhancements, adaptations, translations, or derivative works to the foregoing. Except for rights granted to Customer, all other rights in and to the Services are expressly reserved by OmniAgent and its licensors.

 

2.3. Data Protection: Customer agrees that Personal Information will be held and processed by OmniAgent in accordance with the terms of its privacy policy as set out on the Site: https://www.omniagent.in/privacy-policy/ and, to the extent required by applicable law, the Data Processing Addendum once executed by the Parties.

 

2.4. Feedback: By providing any feedback to OmniAgent, Customer grants OmniAgent a perpetual, worldwide, fully transferable, sublicensable, non-revocable, non-exclusive and royalty free license to use the feedback that Customer provides for any purpose.

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3. AI GOVERNANCE

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3.1. AI Safety and Compliance: Customer acknowledges that components of the Services use generative artificial intelligence, and as such, the Outputs may be generated using generative artificial intelligence. The Models that are used by OmniAgent to generate such Outputs, including Models that are provided by OmniAgent’s third-party providers, are each subject to OmniAgent’s due diligence processes and testing on the safety, quality, and security of such Models. OmniAgent endeavors that the use of Models in its provision of the Services will comply with all applicable laws and regulations.

 

3.2. Improvements to Models: OmniAgent does not permit any of its third-party providers that provide OmniAgent with Models to: (i) store Customer Data beyond the period reasonably required to for such third party to provide the applicable Services; or (ii) train or fine tune any such Model on Customer Data. In exercising the rights granted to OmniAgent in Section 2.1, OmniAgent may use Aggregated and Statistical Information to improve the Models.

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4. FEES; PAYMENT

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4.1. Fees: Customer will pay the fees as described in the applicable Order Form (“Fees”). If no Order Form is signed between Customer and OmniAgent, Customer will pay the applicable fees as specified on the Platform Services. Fees for any Renewal Term will be subject to a 10% increase for the same Services.

 

4.2. Marketplace Purchases: With OmniAgent’s consent, Customer may purchase the Services through one of OmniAgent’s authorized marketplaces (each a, “Marketplace Provider”). If Customer has purchased Services through a Marketplace Provider, then Customer will be invoiced by the Marketplace Provider for such Services and will pay the Fees directly to the Marketplace Provider in accordance with the Marketplace Provider’s invoicing and payment terms.

 

4.3. Conversations: If Customer purchases a set number of Conversations and exceeds the Conversation limit in the Order Form, OmniAgent or the Marketplace Provider, as applicable, will invoice Customer for the additional Conversations at OmniAgent’s then- current rates. If a Conversation is initiated by Customer as part of a proactive campaign, then a Conversation would only be charged if the End User responds.

 

4.4. Invoices and Payment: For Fees that are directly payable by Customer to OmniAgent, invoices will be sent, and payment will be due, in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, invoice billing and payment will be annual upfront payments, and Customer will pay all invoices received from OmniAgent within 30 days of receipt. Customer will pay such invoices by wire transfer or ACH direct payments. Such amounts are subject to a finance charge of 19.56% per annum on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Services.

 

4.5. Taxes: Unless otherwise stated, the Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases pursuant to this Agreement. If OmniAgent has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides OmniAgent with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

5. CONFIDENTIALITY

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Confidential Information: Each Party (“Receiving Party”) will protect the other Party’s (“Disclosing Party”) non-public, proprietary information (“Confidential Information”) and use it solely for purposes related to this Agreement. Confidential Information excludes information that is public, known prior to disclosure, independently developed, or lawfully obtained from a third party. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except: (i) as permitted in this Agreement; or (ii) with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, OmniAgent may disclose this Agreement to its Affiliates, actual and prospective investors, shareholders, consultants, contractors, advisors and partners. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with 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. The Disclosing Party may seek injunctive relief for any breach of Confidential Information.

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6. SUSPENSION OF SERVICES

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6.1. Suspension of Services: OmniAgent may suspend Customer’s access to the Services upon the occurrence of any of the following: 6.1.1. degradation or instability of any part of the Platform Services, in which case OmniAgent will endeavor to provide prior written notice to Customer; 6.1.2. if Customer’s payment of Fees is thirty (30) days or more overdue to OmniAgent or the Marketplace Provider, as applicable. Such is in addition to any of OmniAgent’s other rights or remedies and will persist until Customer has paid all outstanding amounts in full; 6.1.3. an emergency, suspected fraud, enforcement by external authorities or regulatory requirement without notice or on provision of at least ten (10) days’ prior written notice to Customer where practicable; or 6.1.4. Customer’s failure to abide by the Agreement.

OmniAgent will have no responsibility or liability for any losses, lost profits, potential lost business opportunities or other damages that might arise in relation to OmniAgent’s suspension of Customer’s access to the Services.

 

7. TERM AND TERMINATION

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7.1. Term: This Agreement will begin at the start of the Initial Term of the first Order Form and remain in effect until expiry of all outstanding Order Forms (the “Term”). Each Order Form will set out each Initial Term and Renewal Term (if applicable). Except as otherwise stated in an Order Form, the Initial Term the Order Form shall automatically renew for successive one-year periods unless either party provides at least 30 days’ notice of its intent not to renew prior to the expiry of the Initial Term or applicable Renewal Term. If Customer’s use of any Services extends past the termination or expiry of the Term, then the terms and conditions of this Agreement will survive until such use terminates. If Customer has purchased the Services through a Marketplace Provider, the Initial Term and the Renewal Term, as applicable, will be the dates set out in the Order Form regardless of the subscription start or end dates provided by or agreed to with the Marketplace Provider.

 

7.2. Termination: Either Party may terminate this Agreement immediately on written notice if the other Party:

    7.2.1. commits a material breach of this Agreement, which is capable of remedy, and the Party in breach fails to remedy the breach within thirty (30) days of written notice from the other Party;

    7.2.2. commits a material breach of this Agreement which cannot be remedied;

    7.2.3. is repeatedly in breach of this Agreement and has been given prior notice in writing that a further breach of this Agreement will result in its termination;

    7.2.4. is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if it goes into either voluntary (other than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs; or

    7.2.5. is unable, as a result of a Force Majeure Event (as defined below) or for any other reason, to comply with a material portion of this Agreement for a continuous period of not less than sixty (60) days.

 

7.3. Effect of Termination: The following are effects of termination:

    7.3.1. any termination of this Agreement (howsoever occasioned) will not affect any accrued rights or liabilities of either Party, nor will it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination;

    7.3.2. Customer will, at OmniAgent’s choice, return all Confidential Information of OmniAgent and any copies thereof or destroy or permanently delete all such Confidential Information and provide written certification that it has done so;

    7.3.3. following termination of this Agreement, OmniAgent will retain Customer Data for a reasonable period of time (including to comply with applicable laws) and enable Customer to request and export certain Customer Data, and after such reasonable period of time, OmniAgent will destroy or permanently delete all Customer Data; and

    7.3.4. notwithstanding anything to the contrary herein, the obligation to return, destroy or permanently delete all copies of the Confidential Information of the other Party does not extend to automatically generated computer backups or archival copies on Parties’ automatic backup systems, provided that such copies are held in accordance with the provisions of this Agreement for so long as they are retained.

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8. WARRANTIES; DISCLAIMERS

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8.1. OmniAgent Warranty: OmniAgent represents and warrants that the Services will be performed in a good and workmanlike manner, and consistent with industry standards applicable to top tier providers of similar services and otherwise in accordance with the terms of this Agreement. 8.2. Customer Warranty: Customer represents and warrants to OmniAgent that Customer has all the rights, power and authority necessary to grant the licenses granted herein and that use of the Customer Data in the manner contemplated herein will not breach the rights of any third party. Customer is solely responsible for obtaining, and will obtain, all rights, consents, and permissions from, and making all requisite disclosures to, Authorized Customer Users and End Users, in each case as required under applicable laws, for: 8.2.1. Customer’s use of Customer Data in connection with the Services in accordance with the terms of this Agreement; and 8.2.2. for OmniAgent to perform the Services and the obligations under this Agreement, including to collect, procure, gather, store, process and access Customer Data or Personal Information. Customer agrees that it will: 8.2.2.1. not request any sensitive Personal Information, including credit card or banking information, from its End Users through the Services and will not otherwise provide or make available any such sensitive Personal Information to OmniAgent, and Customer further acknowledges that OmniAgent is not a payment card processor and that Services are not PCI DSS compliant; and 8.2.2.2. not use the Services to transmit, store, or process personal health information, including health information subject to United States Health Insurance Portability and Accountability Act (“HIPAA”) regulations except as permitted by an executed HIPAA Business Associate Agreement. 8.3. Mutual Warranties: Each Party represents and warrants to the other Party that: 8.3.1. it is a corporation, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; 8.3.2. it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; 8.3.3. the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and 8.3.4. it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and businesslike manner, consistent with industry standards.

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8.4. GENERAL DISCLAIMER: OmniAgent DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OmniAgent TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OmniAgent HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, OmniAgent EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER, INCLUDING ANY OUTPUTS, IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. 8.5. AI DISCLAIMER: WITHOUT LIMITING SECTION 8.4 (GENERAL DISCLAIMER), CERTAIN FEATURES AND FUNCTIONALITY OF THE SERVICES MAKE USE OF ARTIFICIAL INTELLIGENCE THAT IS DESIGNED TO, AMONG OTHER BENEFITS, IMPROVE CUSTOMER ENGAGEMENT AND STREAMLINE SUPPORT PROCESSES, INCLUDING FEATURES AND FUNCTIONALITY RELATED TO AUTOMATED CUSTOMER INTERACTIONS, NATURAL LANGUAGE PROCESSING, AND RESPONSE GENERATION. CUSTOMER ACKNOWLEDGES AND AGREES THAT: (A) OUTPUTS GENERATED BY THE SERVICES MAY NOT BE UNIQUE TO CUSTOMER AND ARE NOT GUARANTEED TO BE ACCURATE, NON-INFRINGING, OR FREE OF OFFENSIVE OR UNAUTHORIZED CONTENT; AND (B) AI SOLUTIONS HAVE INHERENT LIMITATIONS WITH RESPECT TO: (I) THEIR DEPENDENCE ON TRAINING DATA; (II) THE WAY SUCH AI SOLUTIONS ARE USED AND PROMPTED; AND (III) THEIR ACCURACY (INCLUDING THE POSSIBILITY OF HALLUCINATIONS). ACCORDINGLY, THE SERVICES ARE NOT A REPLACEMENT FOR QUALIFIED AND SKILLED PROFESSIONALS. CUSTOMER AGREES THAT IT WILL EXERCISE ITS OWN GOOD JUDGEMENT, INCLUDING TAKING STEPS TO ENSURE THE ACCURACY OF THE OUTPUTS OF THE SERVICES AND TAKING STEPS TO ENSURE THERE IS SUFFICIENT HUMAN OVERSIGHT.

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9. INDEMNIFICATION

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9.1. Intellectual Property Indemnification:

    9.1.1. If liable, OmniAgent will defend Customer against third-party claims resulting from infringement by the Services of any patent or any copyright or misappropriation of any trade secret (“IP Claim”), and pay amounts finally awarded by a court or included in a settlement approved by OmniAgent, provided:

        9.1.1.1. OmniAgent is promptly notified of any and all threats, claims and proceedings related thereto;

        9.1.1.2. Customer provides reasonable assistance requested by OmniAgent; and

        9.1.1.3. Customer gives OmniAgent sole control over defense and settlement.

    9.1.2. The obligations of OmniAgent in this Section 9(a) will not apply to the extent that an IP Claim by the third party is (A) based on the unauthorized use by the Customer (or any End User, Affiliate of Customer or Authorized Customer Users) of the Services in a manner not permitted by this Agreement; (B) based on Customer Data; or (C) based on the modification of Services by or on behalf of the Customer in a manner not permitted by this Agreement.

    9.1.3. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by OmniAgent to be infringing, OmniAgent may, at its option and expense: (A) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (B) obtain for Customer a license to continue using the Services; or (C) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Fees for the Services, calculated on a monthly prorated basis.

 

9.2. Mutual Indemnification: Each Party (the “Indemnifying Party”) agrees to defend the other Party and its Affiliates, officers, directors, employees and representatives (the “Indemnified Parties”) from and against any and all claims, complaints, demands, investigations, actions, suits and proceedings by any third party, for which the Indemnifying Party is liable for (each a “Third Party Claim”), and all resulting liabilities and obligations (including damages, administrative monetary penalties, financial sanctions, settlement payments, expenses and costs, including lawyer’s fees) awarded by a court or included in a final settlement arising from, connected with or relating to:

    9.2.1. in the case of Customer as the Indemnifying Party, any breach of Sections 1(g) or 8(b), any breach by Customer of applicable laws, or any Third Party Claim related to Customer Data, including if Customer Data infringes the rights, including Intellectual Property Rights or privacy rights, of any third party; or

    9.2.2. in the case of OmniAgent as the Indemnifying Party, the unauthorized disclosure by OmniAgent of Personal Information, contrary to these Terms of Use, except arising from or otherwise attributable to any act or omission by the Customer.

 

10. Conditions:

In consideration for the Indemnifying Party’s obligations under Section 9.2, the Indemnified Party will: 9.3.1. promptly give the Indemnifying Party written notice of the Third Party Claim; 9.3.2. give the Indemnifying Party sole control of the defense and settlement of the Third Party Claim; and 9.3.3. provide to the Indemnifying Party all reasonable assistance in defending or settling the Third Party Claim.

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11. LIMITATION OF LIABILITY

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10.1. Limitation on Indirect Liability: In no event will either Party be liable for any consequential, incidental, punitive or special damages which either Party or End Users, Affiliates, parent companies, associates, agents, officers, directors or employees may incur or suffer in connection with this Agreement, including, resulting from either Party’s acts or omissions pursuant to this Agreement.

 

10.2. Limitation on Amount of Liability: To the maximum extent permitted by applicable law, each Party’s aggregate liability for all claims relating to this Agreement will not exceed the equivalent of the Fees paid or payable by Customer to OmniAgent in the previous six (6) months preceding the claim.

 

10.3. Exceptions to Limitations: These limitations of liability do not apply to either Party’s indemnification obligations under Section 9. In respect of OmniAgent’s indemnification obligations under Section 9, OmniAgent’s aggregate liability for all claims will not exceed the equivalent of the Fees paid or payable by Customer to OmniAgent in the previous twelve (12) months preceding the claim.

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12. MISCELLANEOUS

 

12.1. Force Majeure: Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement, except payment obligations, if such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, hostilities, invasion, terrorist acts, riots, civil commotion, strikes, lockouts, bandhs, curfews, government orders, statutory changes, epidemics, pandemics, internet or telecommunications outages, power failures, natural disasters, or any other similar events ("Force Majeure Event"). A Party affected by a Force Majeure Event shall promptly notify the other Party in writing within seven (7) days of its occurrence, detailing the nature of the event, the affected obligations, and a reasonable estimate of the delay. If the Force Majeure Event continues for a period exceeding sixty (60) days, either Party may terminate this Agreement by providing written notice, without any liability to the other Party, except for obligations accrued prior to such termination.

12.2. Relationship of the Parties: The relationship between the Parties is and shall remain that of independent contractors. Nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture, agency, employer-employee relationship, or any other fiduciary relationship between the Parties. Neither Party shall have any authority to act for, represent, or bind the other Party in any manner, except as expressly provided herein.

12.3. Responsibility for End-User Support: The Customer acknowledges and agrees that, unless specifically set forth in an Order Form or this Agreement, OmniAgent has no obligation to provide any support, maintenance, or technical assistance directly to the Authorized Customer Users or End Users of the Services. Any such support to End Users shall be the sole responsibility of the Customer.

12.4. Interpretation: For the purpose of construction and interpretation of this Agreement:
11.4.1. The terms "herein," "hereof," "hereunder," and similar expressions refer to this Agreement as a whole and not to any specific Section, Clause, or provision.
11.4.2. The headings and titles used in this Agreement are for convenience of reference only and shall not be used in the interpretation or construction of any provision.
11.4.3. The words "include," "includes," and "including" shall be construed as illustrative and not limiting, and shall be deemed to be followed by the phrase "without limitation."
11.4.4. The term "or" is not exclusive and shall be interpreted inclusively, meaning "and/or."
11.4.5. Unless otherwise expressly stated in an Order Form, all references to monetary amounts and currency shall be in Indian Rupees (INR).
11.4.6. References to any person or entity shall include their successors-in-interest and permitted assigns.
11.4.7. References to any statute, regulation, or law shall include all amendments, re-enactments, or substitutions thereof.

12.5. Governing Law and Jurisdiction:
11.5.1. This Agreement, and any non-contractual obligations arising out of or in connection with it, shall be governed by, and construed in accordance with, the laws of India.
11.5.2. The Parties irrevocably agree that the courts of Bhubaneswar, Odisha, India, shall have exclusive jurisdiction to settle any dispute, controversy, or claim arising out of or relating to this Agreement, including regarding its existence, validity, or termination. The Parties agree to submit to the jurisdiction of such courts and waive any objection based on venue or forum non-conveniens.
11.5.3. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby expressly excluded.

12.6. Assignment: Neither Party may assign, transfer, or novate any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, OmniAgent may assign this Agreement in its entirety to (a) an Affiliate, or (b) a successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or business to which this Agreement pertains. Any purported assignment in violation of this Section shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective lawful successors and permitted assigns.

12.7. Publicity: OmniAgent may identify the Customer as a client in its marketing materials, on its website, and in public communications, including the use of the Customer's name and logo. The Customer hereby grants OmniAgent a non-exclusive, royalty-free license for this purpose for the duration of this Agreement. This consent is not required for OmniAgent to disclose the Customer relationship in confidential communications with its professional advisors, potential investors, or during due diligence processes.

12.8. Notices: All notices, approvals, consents, or other communications required or permitted under this Agreement shall be in writing in the English language and shall be deemed duly given (a) when delivered by hand, (b) when sent by registered post or speed post with acknowledgment due, (c) when sent by a recognized courier service providing proof of delivery, or (d) when sent by email with a read receipt or other confirmation of transmission, to the addresses specified below or such other address as a Party may notify in accordance with this Section. Notices to OmniAgent shall be sent to:
OmniAgent / Tatwa Technologies Ltd.
Attention: Legal Department
Plot No. -E-52, Infocity,
Bhubaneswar - 751023,
Odisha, India.
Email: talktous@omniagent.in
With a copy to: legal@omniagent.in (for formal legal notices)

12.9. Binding Nature: This Agreement shall be binding upon and enure to the benefit of the Parties and their respective successors and permitted assigns.

12.10. Amendments and Waiver: No amendment, modification, or waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of both Parties. The failure of either Party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

12.11. Further Assurances: Each Party shall, at its own cost, execute and deliver such further documents and instruments and take such other actions as may be reasonably required or appropriate to carry out the intent and purposes of this Agreement.

12.12. Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision shall be severed. The validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired.

12.13. Rights Cumulative: Except as expressly provided herein, the rights, powers, privileges, and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers, privileges, or remedies provided by law or in equity.

12.14. Survival: Any provision of this Agreement which by its nature is intended to survive termination or expiration, including but not limited to Sections on Confidentiality, Ownership, Warranties, Indemnification, Limitation of Liability, and this Miscellaneous section, shall survive such termination or expiration.

12.15. Entire Agreement:
11.15.1. This Agreement, comprising these Terms of Use, the Order Form(s), and any documents expressly incorporated by reference (such as the Service Specific Terms, Acceptable Use Policy, and Data Processing Addendum), constitutes the entire agreement between the Parties concerning its subject matter and supersedes all prior and contemporaneous agreements, representations, proposals, and understandings, whether written or oral.
11.15.2. In the event of any inconsistency or conflict between the documents forming part of this Agreement, the following order of precedence shall apply:
(a) The executed Order Form (the most recent signed Order Form taking precedence over earlier ones);
(b) The Service Specific Terms (SST);
(c) These Terms of Use;
(d) The Appendices, Exhibits, and Attachments to these Terms of Use; and
(e) Any other document incorporated by reference.

12.16. Language: This Agreement has been drafted and executed in the English language. Any translation provided is for convenience only, and the English language version shall govern and prevail in all respects. All notices and communications under this Agreement shall be in the English language.

​

APPENDIX A

OmniAgent Models: means Models owned by or developed by on behalf of OmniAgent, including OmniAgent’s fine-tuned models based upon open sourced or other third-party models.

 

OmniAgent APIs: means any OmniAgent proprietary application programming interface (API) used to access the OmniAgent Platform.

 

Affiliate: means any entity that directly or indirectly controls or is controlled by or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

 

API Terms: means OmniAgent’s API terms found at www.omniagent.in.

 

AUP or Acceptable Use Policy: means the OmniAgent Acceptable Use Policy set out at www.omniagent.in.

 

Authorized Customer Users: means employees or agents of Customer or any Affiliate of Customer that are authorized by Customer to access and use the Services on behalf of Customer.

 

Bot: means OmniAgent’s proprietary conversational, artificial intelligence powered AI Agent and scripted bot(s), provided as part of the Services, including any bot designed to automated customer experience, customer engagement and/or technical support.

 

Channel: means any communication or messaging channel(s) specified in the Order Form, which may include but are not limited to web chat, voice, email, or social messaging.

 

Conversation: means unlimited messages between a Bot and an End User in a single Channel, other than for a Voice Conversation or Email Conversation (as defined in the SST), during a 24-hour period. For clarity, a Conversation starts with an End User sending a message to OmniAgent and ends with an End User exiting the chat or following 24 hours of inactivity from the last message sent by the Bot.

 

Customer: means the entity identified in the Order Form or any individual or entity who uses the Services.

 

Customer Data: means:

    (a) the content that the Customer, any Authorized Customer User, or any End User provides, stores, or processes through the Services, including Inputs; and

    (b) the Outputs.

 

Data Processing Addendum or DPA: means the OmniAgent Data Processing Addendum set out at https://www.omniagent.in/ if executed by the Parties, or any other Data Processing Addendum executed by the Parties.

 

End User: means end users of Customer or a Customer Affiliate who interact with the Bot, or otherwise use the OmniAgent Platform, through the Channel.

 

Initial Term: means the earlier of:

    (a) the date that Customer has first used the applicable Services; and

    (b) the “Initial Term” set out in the Order Form.

 

Input: means any content Customer provides or exposes to Models made available through the OmniAgent Platform.

 

Intellectual Property Rights: means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.

 

Model: means a machine learning model that has been trained on datasets to learn patterns and relationships, enabling it to make inferences from Inputs to generate Outputs.

 

Order Form: means either: (a) an online order form submitted through the Site subscribing for the Services (which may be available from time to time); or (b) an order form signed by Customer and OmniAgent subscribing for the Services, in each case, which incorporates these Terms of Use.

 

Order Form Term: means the Initial Term and the Renewal Term.

 

Output: means a result generated by OmniAgent Models forming part of the Services.

 

Party: means either Customer or OmniAgent, and Parties means both Customer and OmniAgent.

 

Personal Information: means any information about an identifiable individual or any information that is defined as “personal information,” “personal data,” or a similar term under applicable privacy laws.

 

Platform Services: means OmniAgent’s software platform, made available as a service, through which it provides its conversational Bots and related software offerings, including any Models utilized by the platform.

 

Renewal Term: has the meaning as set out in the Order Form.

 

Services: means, collectively: (a) the Platform Services; (b) the Professional Services; and (c) any other products and services set out in an Order Form or otherwise made available by OmniAgent under these Terms of Use.

 

Site: means any website of OmniAgent, including https://omniagent.in, www.omniagent.in, and any sub-sites of the foregoing websites.

 

SST or Service Specific Terms: means the OmniAgent Service Specific Terms set out at www.omniagent.in.

 

Statement of Work or SOW: means any written or electronic statement of work for the order of Professional Services entered into between OmniAgent and Customer.