OCP Agreement

Last modified: Sep. 10, 2020

This Omilia Cloud Platform Agreement (the “Agreement”) is made and entered into by and between Omilia Natural Language Solutions Ltd having its registered office at Gladstonos 55 Str., 3040, Limassol, Cyprus (“Omilia”) and the entity or person agreeing to these Terms (“Customer", “You”), in regard to Customer’s use of the Omilia Cloud Platform Services (the “OCP Services” or “Services”), as such services are described below. Omilia and Customer are hereinafter collectively referred to as the “Parties”.

This Agreement together with the OCP Data Privacy Policy, the OCP Security Policy, the OCP Service Level Agreement, the OCP Service Order Form, and all relevant Addendums, either linked herein, attached hereto, or signed separately by the Parties shall be collectively referred to as the “Agreement”.

BY CLICKING “I ACCEPT,” AND/OR ACCESSING OR USING THE SERVICES MADE AVAILABLE BY OMILIA HEREUNDER, YOU REPRESENT THAT (I) YOU ARE AUTHORIZED TO ACT ON BEHALF OF CUSTOMER AND HAVE THE AUTHORITY TO LEGALLY BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, (II) YOU HAVE READ THESE TERMS AND CONDITIONS, AND (III) CUSTOMER SHALL COMPLY WITH AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE AUTHORITY TO BIND CUSTOMER, OR IF YOU OR CUSTOMER DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU AND CUSTOMER MAY NOT USE THE SERVICES.

THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE YOU CLICK “I ACCEPT” OR, IF EARLIER, WHEN YOU USE ANY OF THE OCP SERVICES. IF YOU HAVE EXECUTED A SEPARATE AGREEMENT WITH OMILIA SPECIFIC TO THIS TRANSACTION, THAT SEPARATE AGREEMENT WILL TAKE PRECEDENCE AS TO THE TERMS AND CONDITIONS APPLICABLE TO YOUR TRANSACTION.

The Agreement governs your access to and use of the OCP Services. If you wish to request an offline variant of this Agreement, you may contact Omilia for more information.

In consideration of the mutual agreements contained herein and intending to be legally bound hereby, the Parties agree as follows:

1. Definitions

1.1.

“Affiliate” means, with respect to a subject entity, any other entity controlling, controlled by, or under common control with the subject entity.

1.2.

“Applicable Law” means all laws, rules, regulations, treaties (and similar governmental obligations), including without limitation local, national and multinational, that are applicable to the Parties as the context requires.

1.3.

“Business Day” means any day other than Saturday, Sunday, or a national holiday in the United Kingdom.

1.4.

“Claim” means any allegation, claim, cause of action, suit, proceeding, arbitration, mediation, or demand of any nature.

1.5.

“Confidential Information” means information that one Party discloses (directly or indirectly) to the other Party, pertaining to private, proprietary, or confidential information of the disclosing Party, in all cases subject to the exclusions set forth in Section 6.2. This Agreement and the terms thereof are deemed each Party’s Confidential Information.

1.6.

"Customer End-User" means any employee, representative, user, agent, or any other individual the Customer authorizes to use the OCP Services.

1.7.

“Data Privacy Laws” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”), and repealing Directive 95/46/EC (General Data Protection Regulation).

1.8.

“Effective Date” has the meaning set forth in the Recitals.

1.9.

“Intellectual Property Rights” or “Proprietary Rights” means any and all intellectual property rights anywhere in the world, including, without limitation, all rights in, arising out of, or associated therewith (a) procedures, designs, inventions, discoveries, and all patents issued or issuable thereon; (b) works of authorship, copyrights and other rights in works of authorship; (c) trade secrets; (d) know-how; (e) copyrights and trademarks; and (f) mask work rights.

1.10.

“Materials” means source code, software, hardware, servers, networks, and similar materials.

1.11.

“Omilia Marks” or “Marks” means business names, trade names, trademarks, service names, logos, and similar identifiers of Omilia or its Affiliates.

1.12.

“OCP Data Privacy Policy” means the terms set forth at https://www.ocp.ai/privacypolicy

1.13.

“OCP Security Policy” means the terms set forth at: https://www.ocp.ai/securitypolicy

1.14.

“OCP SLA” means the OCP Service Level Agreement as per the terms set forth at https://www.ocp.ai/sla

1.15.

“OCP Service Order Form” means the written document between Customer and Omilia that details the scope of OCP Services and Professional Services and applicable pricing as set forth in the then current Omilia Price List or as agreed by the Parties.

1.16.

“Representatives” means, with respect to a Party, the directors, officers, employees, contractors, subcontractors, and agents of such Party or its Affiliates.

2. License – Intellectual Property Rights

2.1.

Omilia grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license for the Term of this Agreement as set forth in Section 4, to access and use the OCP Services described within the OCP Service Order Form(s) and any software provided by Omilia to access those OCP Services, including Omilia proprietary interface elements, application program interfaces and/or software development kits, and the related documentation, data, code, sample applications and materials (collectively, “Software”), solely for applicable business purposes.

2.2.

Customer acknowledges and agrees that Omilia exclusively owns all right, title and interest to the OCP Services and Software, including without limitation code, deliverables copyrights, know how, Marks, trade secrets, service marks, logos, copyrights, know-how, information and system data, technologies, intellectual property, information and data generated by Omilia or Omilia’s systems, whether pre-existing, or created after the effective date of the Agreement, including any modifications, enhancements and derivatives thereof (including, without limitation, metrics, data and information generated by such Services and Software).

2.3.

Customer does not acquire any rights, express or implied, in the OCP Services, except as expressly granted herein. Customer acknowledges and agrees that its rights in and to Omilia’s technology and the OCP Services are limited to the license rights set forth in this Section. Customer shall not claim ownership or proprietary rights in Omilia’s technology or the OCP Services. Customer agrees that any deliverables, Omilia products or Omilia services, that are based on an existing product of Omilia that have been improved or enhanced with extra functionalities, as well as any model of Omilia, and in particular (i) software, (ii) tools, (iii) acoustic models, (iv) semantic and/or language model(s), improved or enhanced as a result of training with Customer data as well as any and all derivative works of the above deliverables shall constitute Omilia’s Intellectual Property.

3. Provision of Services

3.1.

Omilia provides and maintains through itself and authorized third parties the hardware, equipment, technical support, systems, and personnel necessary to ensure the hosting and controlling of the OCP Services. All patches and fixes and standard new releases and new versions of the OCP Services will be provided to Customers at no additional charge when generally available. Non-standard upgrades and optional product enhancements, such as other Omilia products, integration work, extensive customization and non-standard features, may be made available for an additional fee.

3.2.

The infrastructure used to provide the OCP Services and Customer data may be hosted on servers that are controlled by Microsoft Azure (“Azure”) and/or Amazon Web Services (“AWS”). By using the Services, Customer consents to this processing and storage of Customer Data and the Azure and/or AWS Service Terms which can respectively be consulted at: https://azure.microsoft.com/en-us/support/legal/ and https://aws.amazon.com/legal/

3.3.

Customer’s use of the OCP Services is subject to the OCP Service Level Agreement (SLA), which is provided at https://www.ocp.ai/sla/, except for:

(i)

occasional planned downtime at non-peak hours (for which advance notice will be provided); or

(ii)

any unavailability caused by circumstances beyond Omilia’s reasonable control, including failure or delay of Customer’s Internet connection, misconfiguration by Customer or any third party, issues on Customer’s network, or telecommunications services contracted by or for Customer, or

(iii)

unavailability as a result of the actions of Azure or AWS, including (a) any maintenance or planned downtime of the Azure or AWS services, (b) any fault or failure of the Azure or AWS services, or (c) Azure or AWS either terminating the Azure or AWS Customer Agreement or suspending Omilia’s or Customer’s use of Azure or AWS services.

4. Term and Termination

4.1.

The Term of this Agreement shall commence on the Effective Date and shall continue until the Agreement is terminated as set forth in Section 4 of this Agreement.

4.2.

This Agreement and/or any applicable Addendum(s) may be terminated by either Party:

(i)

if the other Party is in material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice by the non-breaching Party;

(ii)

upon insolvency of the other Party, if permitted by law;

(iii)

if Customer does not accept the amendments as per Section 16 hereunder; or

(iv)

immediately at any time without notice to the other Party.

4.3.

Omilia may terminate this Agreement and/or the applicable Addendums immediately and without liability to the Customer if:

(i)

Customer or any Customer End-User infringes (or will likely or threatens to infringe) Omilia’s intellectual property rights; or

(ii)

Customer or any Customer End-User willfully violates or otherwise fails to comply to the Acceptable Use Terms and Other Restrictions set forth in Sections 8 & 9 of this Agreement; or

(iii)

Customer files for (or is involuntarily forced into) bankruptcy proceedings;

(iv)

Customer has failed to comply with laws as defined in this Agreement, including Import and Export requirements; or

(v)

there is a Change of Control in the Customer, or the Customer's controlling Shareholder(s), through merger, acquisition, sale of equity, capital increase, or similar act.

(vi)

Customer has not accessed the OCP Console or if the Services have had no network activity or have not incurred any Fees for a period of 60 days.

4.4.

Effects of Termination

If the Agreement is terminated, then:

(i)

the rights granted by one party to the other will immediately cease;

(ii)

all Fees owed by Customer to Omilia are immediately due upon receipt of the final invoice;

(iii)

each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.

Upon Termination, Omilia will make Customer Data (as it existed at the time of Termination) available for retrieval by the Customer for a retrieval period of ninety (90) days. At the end of such retrieval period, and except as may be required by law, Omilia may delete or otherwise render unrecoverable any Customer Data that remains in the OCP Services. Customer may request that such data be exported in a readable format during this retrieval period and provided to Customer for an additional fee.

5. Payment Terms

Unless otherwise set forth in the OCP Service Order Form or any other relevant Addendum to this Agreement, the following payment terms shall apply:

5.1.

All prices and fees are exclusive of all applicable taxes. Customer agrees to pay and bear the liability for all taxes associated with the use of the OCP Services, including, but not limited to, sales, use, excise, value added and similar taxes and all duties or governmental impositions, but excluding (i) taxes based on Omilia’s net income, and (ii) any withholding taxes. In the event that Customer is required to withhold taxes, Customer agrees to furnish to Omilia receipts and documentation substantiating such withholding of taxes.

5.2.

Unless an alternative date of payment is set out on the Addendum or specific order, all payments shall be made without deduction or set-off and are due thirty (30) days from receipt of Omilia’s invoice, which shall be deemed received no more than three (3) days from the invoice date as issued by Omilia. In the event a payment due date falls on a weekend or a holiday, the payment shall be payable by Customer to Omilia on the business day immediately prior to such date.

5.3.

Omilia may charge interest of one point five percent (1.5%) per month compounded for the entire overdue period or the maximum amount allowed by law unless Customer has a bona fide objection supported by written explanation.

6. Confidentiality

6.1.

The Parties understand and agree that in connection with the negotiation and performance of this Agreement and the Addendums, each Party agrees to hold and treat (and to cause its subcontractors, employees or representatives, or agents of any kind, to hold and treat) all Confidential Information in confidence and use such Confidential Information only for the purposes authorized under this Agreement and the Addendums. The Confidential Information will not, without the prior written consent of the other Party, be disclosed to any third party except that the receiving Party may disclose the Confidential Information or portions thereof (a) to its directors, officers, employees, agents and representatives on a need-to-know basis or (b) as may be required by law, applicable regulation or judicial process, provided, however, that if the receiving Party is required to disclose such Confidential Information under this Section, the receiving Party shall, to the extent legally permissible, promptly notify the disclosing Party of such pending disclosure and consult with the disclosing Party prior to such disclosure as to the advisability of seeking a protective order or other means of preserving the confidentiality of the Confidential Information.

6.2.

Notwithstanding anything contained herein to the contrary, Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publicly available sources generally known by the public (other than as a result of a disclosure by the receiving Party or its representatives), (ii) is available to the receiving Party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information, or (iii) has been independently acquired or developed by the receiving Party without violating its obligations under this Agreement or any Applicable Law.

6.3.

This Section shall supersede any previous agreement relating to confidential treatment and/or non-disclosure of Confidential Information; provided, however, that any information disclosed pursuant to that earlier agreement shall be deemed to be Confidential Information and protected under the terms of this Agreement as if this Agreement had been in place at the time of such disclosures.

6.4.

In the event of a breach of this Section 6, the disclosing Party may not have an adequate remedy at law. The Parties therefore agree that the disclosing Party may be entitled to seek a temporary and/or permanent injunction, specific performance or any other form of equitable relief deemed appropriate by a court of competent jurisdiction.

7. Data Processing, Security and Usage

7.1.

Customer shall provide an unlimited, unrestricted, non-exclusive license to Omilia to use Customer Data related to OCP Services, to the full extent permitted by applicable laws and regulations (such as, but not limited to, GDPR), for the provision of Omilia’s Products and Services.

7.2.

Customer hereby grants Omilia a perpetual, irrevocable right to de-identify and use Customer data (and text files derived from such data), to allow Omilia to develop, improve and model Omilia's machine learning technology. Customer Data that has been de-identified and/or aggregated ("Training Data") is no longer deemed Customer Data. To the extent permitted by law, Omilia retains the right to move the Training Data to other data center and / or data center locations.

7.3.

Customer shall, as required by applicable laws or regulation, provide notice to its own end customers or users and obtain valid consent if required for the use of OCP Services and related technology to the provision of the Services (such as, regarding Omilia’s monitoring features, the use of cookies, messaging functionality, etc.), in Customer’s privacy policy and as otherwise required;

7.4.

If Customer decides to use SMS or other messaging functionality, Customer shall comply with all applicable consumer regulations as well as with opt-in and opt-out requirements applicable to Customer’s business use of SMS or other messaging functionality, including, but not limited to obtaining and maintaining valid consumer consent to receive SMS or other messages.

7.5.

Customer agrees that OCP Services include monitoring of user activity and generate system data based on such activity, and understands that Omilia shall not use or disclose personally identifiable user information to any third party without the prior written consent of the Customer, as applicable, except to subcontractors performing services for Omilia who are bound by confidentiality terms. It is understood that non-personally identifiable data, transcripts and information generated by Omilia’s systems may be used by Omilia for purposes such as, but not limited to, troubleshooting, optimization and tuning, system improvements, customer support and reporting. Omilia may, in its sole discretion, review, modify, relocate, remove or otherwise eliminate any content or other material sent through or otherwise included in the OCP Services by the Customer or anyone on behalf of or for the benefit of the Customer in the event such content is not in compliance of the OCP Services. Omilia shall be permitted to process Customer’s data for the following purposes: (a) to provide the OCP Services; (b) to operate, maintain, enhance and support such OCP Services (and related services) and the infrastructure used to provide the OCP Services; and (c) to respond to customer support requests.

7.6.

Customer may select the geographical region or country where certain Customer Data will be stored ("Data Location"), and Omilia will store it there in accordance with this Agreement and the applicable OCP Data Privacy and OCP Security Policies. If Customer does not specify a Data Location with respect to any Customer Data, Omilia may process and store the Customer Data in any data center where servers providing the OCP Services are located. To the extent permitted by law, Omilia retains the right to move the Data to other data center and / or data center locations within the selected Data Location. By using the Services, Customer consents to this processing and storage of Customer Data.

7.7.

Customer will ensure to undertake all necessary measures to meet all requirements of the applicable Data Privacy Laws. If, under applicable Data Privacy Laws, Customer is a data processor (or data importer) and Omilia is a sub-processor (or sub-importer), Customer shall ensure that Omilia shall be permitted to process Customer’s data for the following purposes: (a) to provide the Services; (b) to operate, maintain, enhance and support such Services (and related services) and the infrastructure used to provide the Services; and (c) to respond to customer support requests.

7.8.

Any data handling and processing performed by Omilia enabling it to provide the agreed OCP Services to the Customer is subject to the OCP Security Policy and the OCP Data Privacy Policy which form an integral part of this Agreement. Customer may not impose any obligations on Omilia without Omilia’s express written consent.

8. Acceptable Use

8.1.

Customer agrees to use the OCP Services only in full compliance with applicable laws and regulations and with the terms set forth in this Section 8 of this Agreement (“Acceptable Use Terms”).

8.2.

If Omilia becomes aware that the Customer's (or any Customer End-User’s) use of the Services violates or otherwise fails to comply with the Acceptable Use Terms, Omilia will give Customer notice of the violation by requesting that Customer correct the violation. Omilia may Suspend all or part of Customer's use of the Services until the violation is corrected.

8.3.

As specified in Section 4.3 of this Agreement, Omilia reserves the right to terminate the Agreement in case of Customer’s (or any Customer End-User’s) repeated or willful violations of the Acceptable Use Terms, or failure to correct such violations.

8.4.

As a condition of using the OCP Services, Customer shall be responsible for any Customer’s End-Users.

8.5.

Customer agrees not to, and not to allow third parties to use the OCP Services in any manner:

(i)

to engage in, or promote or encourage illegal activity or to commit fraud;

(ii)

to damage, disable, overburden, or impair any Omilia server, or the network(s) connected to any Omilia server;

(iii)

to interfere with the use of the OCP Services or the equipment used to provide the Services, by other customers, authorized resellers, or other authorized users;

(iv)

to attempt to gain unauthorized access to any OCP Services, other accounts, computer systems or networks connected to any Omilia server or to any of the OCP Services by any means;

(v)

to operate robots or spiders to scan Omilia's databases or web pages, or to use "deep linking" to Omilia's web pages;

(vi)

to violate any patent, trademark, trade secret, copyright, or any other intellectual property right;

(vii)

to falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;

(viii)

to generate, distribute, publish or facilitate contests, pyramid schemes, chain letters, mass email, spamming or any duplicative or unsolicited messages (commercial or otherwise);

(ix)

to violate, or encourage the violation of, the legal rights (such as rights of privacy and publicity) of others;

(x)

for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);

(xi)

to store or produce telephone numbers to be called, using a random or sequential number generator, and dial such numbers.

9. Additional Restrictions

9.1.

Unless otherwise stipulated herein in this agreement, Customer will not, and will not allow third parties under its control to:

(i)

modify, decompile, reverse-engineer, disassemble or otherwise attempt, directly or indirectly to obtain, or derive source code for the OCP Services,

(ii)

use any Omilia Confidential Information or Omilia intellectual property to create, distribute, sell, license, market or promote any Customer technology or service or any third-Party technology or service without the prior written approval of Omilia,

(iii)

use any Omilia Confidential Information or Omilia intellectual property in conjunction with any third-Party technology without the prior written approval of Omilia,

(iv)

introduce into the OCP Services any threats known as software viruses, time bombs, logic bombs, Trojan horses, trap doors, or other malicious computer instructions, intentional devices or techniques that can or were designed to threaten, infect, attach, assault, vandalize, defraud, disrupt, damage, disable, or shut down a computer system or any component of such computer system, including its security or user data or

(v)

during the Term and one (1) year thereafter, directly or indirectly solicit or entice Omilia personnel or customers away from Omilia to Customer or to a third party.

9.2.

Omilia agrees not to:

(i)

willfully introduce “time bombs,” time-out or deactivation functions or other means designed to terminate the operation of the Services, other than at the direction of the Customer and other than disabling code used to terminate the Services in accordance with the termination rights included herein;

(ii)

intentionally introduce into the Services functions or routines that will surreptitiously delete or corrupt data in such a manner as to interfere with the normal operation of OCP Services; or

(iii)

intentionally introduce computer viruses or malicious code into the OCP Services.

10. Warranties

10.1.

Each Party represents and warrants to the other that:

(i)

it has the right to enter into this Agreement and perform its obligations in the manner contemplated by this Agreement, and

(ii)

this Agreement does not and shall not conflict with any other agreement entered into by it, and

(iii)

each Party shall perform its obligations in a professional workmanlike manner.

10.2.

Except for the foregoing warranties and any warranties contained in any applicable Addendum, if any, and to the fullest extent permissible under applicable Law, both Parties disclaim all representations and warranties, express and implied, concerning or related to this Agreement and any of the services provided hereunder or under the applicable Addendum, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.

11. Limitation of Liability

In no event shall either Party be liable for any indirect, incidental, consequential or punitive damages, or for any damages for lost profits, loss of use, loss of business, loss of revenue, arising out of or in relation to this Agreement or the services relating to such documents. Additionally, in no event shall either Party be liable for any cause or claim whatsoever arising out of or related to this Agreement in excess of the fees actually received by Omilia from Customer for the provision of the OCP Services to Customer during the twelve (12) month period immediately preceding the date on which the cause of action arose. The limitations and exclusions contained herein will apply regardless of whether the cause of action arises in contract, tort or otherwise. Neither Party shall be liable for any acts or omissions of third Parties not under its control. Omilia shall not be liable for any third-Party services, code, technology, applications, policies, procedures, or products. In the event that Applicable Law does not allow the limitation of liability as set forth in this Section 11, the limitations detailed in this Section 11 will be deemed modified solely to the extent necessary to comply with Applicable Law. Notwithstanding anything contained herein to the contrary, neither Party excludes or limits liability to the other Party for death or personal injury arising from its gross negligence or willful misconduct.

12. Indemnity

12.1.

The Parties agree that third party claims pertaining to either Party’s intellectual property shall be addressed and managed by each Party respectively in accordance with the process outlined below.

12.2.

Customer Indemnity. If a third party claims against Omilia that Customer’s intellectual property (including, without limitation, applications and data) or content provided to Omilia or used by Customer to perform its duties hereunder infringes such third party’s patent(s) issued as of the Effective Date, copyright or trademark, Customer shall defend and pay all costs of defense of such claim, and will indemnify and hold Omilia harmless from and against any settlement amounts agreed to by Customer or damages finally awarded by a court of competent jurisdiction or administrative authority to such third party. In addition, Customer shall indemnify and hold harmless Omilia from any third party claims, actions, suits, procedures, penalties, fines, liabilities, losses or damages asserted against Omilia based upon or arising out of Customer’s acts or omissions or failure to perform, or its wrongful performance of, any of its obligations or duties under this Agreement, and/or an Addendum.

12.3.

Omilia Indemnity. If a third party claims against Customer that the OCP Services infringe such third party’s patent issued in the EU and the US, as of the Effective Date, copyright or trademark (a “Claim”), Omilia will defend the Claim and pay all reasonable costs of defense of such claim, and will indemnify and hold harmless Customer from and against all settlement amounts agreed upon by Omilia or damages finally awarded by a court of competent jurisdiction or administrative authority to such third party. The indemnification set forth in this Section 12.3 is Omilia’s entire liability, and Customer’s sole and exclusive remedy, for third party Claims.

12.4.

Process. The indemnification obligations above are conditioned upon the Party seeking indemnification:

(i)

giving the indemnifying Party prompt written notice of any claim, action, suit or proceeding;

(ii)

granting complete control of the defense to the indemnifying Party; and

(iii)

reasonably cooperating with the indemnifying Party at the indemnifying Party’s expense.

The indemnified Party may participate in the defense of the claim at its own expense and in a manner not disruptive to indemnifying Party’s conduct of the defense. Additionally, a Party’s indemnification obligations shall not apply to the extent a claim is based on:

(i)

where Omilia is the indemnifying Party, Customer’s modification of any of the OCP Services or where Customer is the indemnifying Party, Omilia’s modification of any of the Customer’s content;

(ii)

Customer’s combination, operation or use of the OCP Services where Omilia is the indemnifying Party or Omilia’s combination, operation or use of Customer’s content where Customer is the indemnifying Party, with other services or data that the indemnifying Party did not provide;

(iii)

anything the Party seeking indemnification (and in the case of Customer) provided to the other that is incorporated into the OCP Services or Customer’s services, as applicable;

(iv)

an act or omission of Omilia where Customer is the indemnifying Party or an act or omission of Customer or a third party where Omilia is the indemnifying Party; or

(v)

where Omilia is the indemnifying Party, Customer’s breach of any obligations under Sections 8 & 9.

In the event that Omilia determines a risk of an infringement, at Omilia’s option and expense, Omilia may replace or modify the OCP Services with substantially equivalent services or replacement services so that such services are no longer infringing, or obtain for Customer the right to continue using the OCP Services. Omilia may cancel the OCP Services and reimburse the appropriate Party for any prepaid but unused OCP Services.

13. Force Majeure

The Parties shall not be liable to each other or any other person for any delay or failure in the performance of this Agreement or for loss or damage of any nature whatsoever suffered by such Party due to disruption or unavailability of communication facilities, utility or Internet service provider failure, acts of war, pandemic, acts of terrorism, acts of god or mother nature, acts of vandalism, lightning, fire, strike, unavailability of energy sources or any other causes beyond the Party’s reasonable control.

14. Independent Contractors

The Parties are independent contractors and this Agreement shall not create an association, joint venture, or relationship of principal and agent, or employer and employee, between the Parties; and neither Party will have the right, power or authority (whether expressed or implied) to enter into or assume any duty or obligation on behalf of the other Party. Notwithstanding the authorizations granted by Omilia pursuant to this Agreement, Customer is not allowed to hold itself out as being a member of the Omilia group of companies or an Omilia employee or representative. For the avoidance of doubt, Customer’s employees (including but not limited to Customer’s call center agents are not Omilia employees.

15. Compliance with Laws

The Parties shall comply with Applicable Laws, regulations and other legal requirements, including without limitation tax, import or export restrictions, data privacy and security, foreign exchange and consumer protection legislation. Each Party will promptly notify the other of any change that such Party actually knows or should reasonably be aware of these laws, regulations or other legal requirements that may affect either Party’s performance under this Agreement. Customer agrees that it will not access, download, use or export the OCP Services into any country and in any manner prohibited by the United States Export Administration Act or any other import or export laws, restrictions, or regulations (collectively the “Export Laws”).

16. Amendments

16.1.

To the Services: Omilia may make commercially reasonable updates to the Services from time to time. If Omilia makes a material change to the Services, Omilia will inform Customer, provided that Customer has subscribed with Omilia to be informed about such change.

16.2.

To the Agreement: Omilia may make changes to this Agreement, including pricing and any linked documents from time to time. Unless otherwise communicated by Omilia, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. Omilia will provide at least 60 days' advance notice for materially adverse changes to any SLAs by either: (i) sending an email to Customer's primary point of contact; (ii) posting a notice upon logging in the OCP Console; or (iii) posting a notice to the applicable Terms or Linked Document. If Customer does not agree to the revised Agreement, they shall stop using the Services and the terms set forth in Sections 4.2 (“Termination”) & 4.4 (“Effects of Termination”) of this Agreement will be applicable. Omilia will post any modification to this Agreement to the OCP Cloud Platform Terms URL.

16.3.

To the Data Processing, Security and Usage Terms. Unless otherwise expressly permitted in the terms set forth in Section 7 of this Agreement, Omilia may change the Data Processing, Security and Usage Terms where such change is required to comply with applicable law, court order, or guidance issued by a governmental regulator or agency. If Omilia makes a material change to the Data Processing and Security Terms in accordance with this Section, Omilia will post the modification to the URL containing those terms.

17. Miscellaneous

17.1.

Assignment. This Agreement may not be assigned by Customer without the prior written consent of Omilia, such consent not to be unreasonably withheld. Omilia may assign this Agreement to any successor to its business. This Agreement binds, and inures to the benefit of, the Parties and their respective successors and permitted assigns.

17.2.

Notice. All notices and consents required or permitted to be given under this Agreement shall be in writing to the Parties at the electronic addresses designated herein or to such other address as either Party may designate from time to time. Written notice shall be made in the form of a certified letter, confirmed facsimile transmission, or acknowledged receipt of electronic mail.

17.3.

Third-Party Beneficiaries. Unless otherwise stated in this Agreement, there are no third-Party beneficiaries to this Agreement.

17.4.

Governing Law.

(i)

For U.S. and Canada Entities: If Customer is any entity incorporated in the United States or Canada, then the following applies: all Claims arising out of or relating to this Agreement or the Services shall be governed by and construed in accordance with the substantive laws of the State of New York, without regard to its conflicts of law principles, and shall be subject to the exclusive jurisdiction of any competent federal court located in the Southern District of the State of New York or any New York state court located in the Borough of Manhattan. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties.

(ii)

For All other Entities: If Customer is any entity incorporated in jurisdictions other than U.S and Canada, then the following applies: all Claims arising out of or relating to this Agreement or the Services shall be governed by and construed in accordance with the substantive laws of England and Wales, without regard to its conflicts of law principles, and, shall be subject to the exclusive jurisdiction of competent courts in London, UK. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties.

17.5.

Survival. Sections pertaining to Confidentiality, Proprietary Rights, Limitation of Liability, and any other Section specifically stated to survive shall survive termination of the Agreement.

17.6.

During the Term of this Agreement and after any termination, Customer shall (i) avoid deceptive, misleading or unethical practices; (ii) refrain from making any false or misleading representations with regard to Omilia and/or any other actions or omissions that would reasonably be expected to harm or actually harm Omilia’s reputation; and (iii) refrain from making any warranties, representations or guaranties with regard to the specifications, features or capabilities of the OCP Services that are inconsistent with the training, documentation and/or policies of Omilia.