1) Use of the technology, or engagement in Omniscient services
a) Authority. You agree that you are permitted to use the Services under applicable law. If you are using the Services on behalf of a company, business or other entity, you represent that you have the legal authority to accept these Terms on behalf of that entity, in which case that entity accepts these Terms, and “you” means that entity. If you are accessing an account(s) on behalf of the account owner (e.g., as an administrator, consultant, analyst, etc.), the Terms apply to your activities on behalf of the account owner.
b) Indemnity. If you are using the Services on behalf of a company, business or other entity, or if you are using the Services for commercial purposes, you and
the entity will hold harmless and indemnify the Omniscient Entities (defined in Section 8 below) from any suit, claim or action arising from or related to the use of the Services or violation of these Terms, including any liability or expense arising from claims (including claims for negligence), losses, damages, suits, judgments, litigation costs and attorneys’ fees.
c) Member Conduct. You agree not to use the Services to:
i) Obtain or attempt to obtain unauthorized access to the Services, servers, systems, network, or data;
ii) Make available any content that is harmful to children, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable
iii) Violate any applicable laws or regulations;
iv) Impersonate any person or entity; or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Service;
v) Make available any content that you do not have the right to make available or that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person or entity;
vi) Post content containing advertisements or other commercial solicitations without our prior written permission;
vii) Make available viruses or any other computer code, files, programs or content designed to interrupt, destroy or limit the functionality of the Services or affect other users; or
viii) Interfere with or disrupt the Services or servers, systems or networks connected to the Services in any way
ix) Unless authorized by Omniscient, you may not probe, scan, or test the vulnerability of any Omniscient system or network
x) Unless authorized by Omniscient, you may not use any manual or automated system or software to extract or scrape data from the websites or other
interfaces through which we make our services available
d) Use of Services. You must follow any guidelines or policies associated with the Services. You must not misuse or interfere with the Services or try to access them using a method other than the interface and the instructions that we provide. You may use the Services only as permitted by law. Unless otherwise expressly stated, you may not access or reuse the Services, or any portion thereof, for any commercial purpose.
e) Export Control. You agree to comply with the export control laws and regulations of the United States and trade controls of other applicable countries, including without limitation the Export Administration Regulations of the U.S Department of Commerce, Bureau of Industry and Security and the embargo and trade sanction programs administered by the U.S. Department of Treasury, Office of Foreign Assets Control. You represent and warrant that you: (1) are not a prohibited party identified on any government export exclusion lists (see e.g., http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm); (2) will not re-export or use the Services to transfer software, technology, or other technical data to prohibited parties or countries; and (3) will not use the Services for military, nuclear, missile, chemical or biological weaponry end uses or conduct any other activities involving the Services that violate the export and import laws of the U.S. or other applicable countries.
f) Anti-Corruption Laws. You agree to comply with all applicable anti-corruption laws including laws that prohibit unlawful payments to anyone for a corrupt purpose in relation to these Terms.
g) Ownership and Reuse. Using the Services does not give you ownership of any intellectual or other property rights or interests in the Services or the content you access. You must not use any branding or logos used in the Services unless Omniscient has given you separate explicit written permission. You may not remove,obscure, or alter any legal notices displayed in or along with the Services. Unless you have explicit written permission, you must not reproduce, modify, rent, lease, sell, trade, distribute, transmit, broadcast, publicly perform, create derivative works based on, or exploit for any commercial purposes, any portion or use of, or access to, the Services (including content, advertisements, APIs, and software).
h) Software License. Subject to your continuing compliance with these Terms, Omniscient grants you a personal, royalty-free, non-transferable, non-assignable, revocable, and non-exclusive license to use the software and APIs provided to you by Omniscient as part of the Services. This license is for the sole purpose of
enabling you to use and enjoy the benefit of the Services as provided by Omniscient, in the manner permitted by these Terms and any additional terms or guidelines. You may not reverse engineer or attempt to extract the source code of our software, unless applicable laws prohibit those restrictions, or you have our explicit written permission. Omniscient software may automatically download and install security or other updates without prior notification to you.
i) Support. Unless otherwise expressly stated, Omniscient does not promise to provide you with any support for the Services. If Omniscient does provide you with support, it is at Omniscient’s sole discretion and does not mean that we will continue to provide you with support in the future.
j) Fees. Omniscient reserves the right to charge fees for use of or access to the Services (and any associated support), whether currently in existence or not, in Omniscient’s sole discretion. If Omniscient decides to charge fees, Omniscient’s payment terms will apply and Omniscient will provide you with prior notice.
k) Different Versions of the Services. Different features may be available in different versions of the Services and not all features may be available in your country or region. Also, not all features may be available if the user that you are communicating with is using a different version of the Services, or is using third party software.
l) Anti-Abuse Policy. Omniscient prohibits sending unsolicited emails or messages using the Services. You may not in connection with the Services engage in Commercial activity on non-commercial properties or apps or high volume activity without Omniscient’s prior written consent. You may not engage in conduct
or activity that is disruptive to the Services or the experience of other users.
2) Your Account; Notices
a) Account Information. You will need an account to use some Services. You must ensure that your account information (that is, the information you provided when you registered for or subscribed to a Service) remains current, complete, accurate and truthful. All Omniscient accounts are non-transferable, and any rights to them terminate upon the account holder’s death.
b) Access to Your Account. You are responsible for all activity that happens on or through your account. To protect your account, keep your password confidential. Do not reuse your account password with other services. Without prejudice to your statutory rights, if you forget your password and otherwise cannot validate your account to Omniscient, you acknowledge and agree that your account may be inaccessible to you and that all data associated with the account may not be retrievable.
c) Notices. Omniscient may provide you with notices, including service announcements and notices regarding changes to these Terms, by, but not limited to, email, regular mail, text message or SMS, MMS, push notification or in-app message, postings on the Services, telephone, or other reasonable means now known or hereafter developed. You consent to receive these notices by any and all of the foregoing means. You may not receive notices if you violate the Terms by accessing the Services in an unauthorized manner, and you will be deemed to have received any and all notices that would have been delivered had you accessed the Services in an
3) Privacy and Data Protection
– Omniscient’s Privacy Center explains how we treat your personal data. By using the Services, you agree to our privacy policies and that Omniscient can use your information in accordance with our privacy policies.
By using and benefiting from Omniscient’s Services you recognize that personalization lies at the core of many of our services. We can only provide many of these Services by using your personal data to provide personalized content and ads. Please visit our Privacy Center to learn more about personalization.
a) Omniscient shall follow its archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Omniscient to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest backup maintained by Omniscient. Omniscient shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Omniscient to perform services related to Customer Data maintenance and backup).
b) Omniscient takes all reasonable steps to protect personal and client information from misuse, interferences and loss, as well as unauthorized access, modification or disclosure. We do this by:
i) Limiting physical access to our premises
ii) Limiting access to the information we collect about you or your clients
iii) Using encrypted files and networks when transmitting data between Omniscient and our partners
4) Procedure for Copyright or Other Intellectual Property Infringement Claims
– Omniscient respects the intellectual property of others, and we expect our users to do the same. Omniscient may, in appropriate circumstances and at its discretion, disable, terminate, and/or take other appropriate steps relating to the accounts of users who may be infringers. If you believe that your copyright or intellectual property rights have been infringed, please contact us.
5) Content in the Services and License Grant to Omniscient
a) Content. Our Services display some content that is not Omniscient’s. This content is the sole responsibility of the entity or person that makes it available. Omniscient assumes no responsibility for the conduct of third parties, including persons or entities with which you communicate using the Services. Many of the Services enable you to submit content. You – not Omniscient – are entirely responsible for any content that you upload, post, email, transmit, or otherwise make available via the Services. We may remove and refuse to display content that violates the Terms or applicable laws or regulations, but that does not mean that wemonitor the Services or review or screen any content. By using or accessing the Services you understand and agree that you may be exposed to offensive,
indecent, or objectionable content.
b) IP Ownership and License Grant. Except as otherwise provided in the specific Omniscient product terms or guidelines for a Service, when you upload, share with or submit content to the Services you retain ownership of any intellectual property rights that you hold in that content and you grant Omniscient a worldwide, royalty-free, non-exclusive, perpetual, irrevocable, transferable, sub-licensable license to (a) use, host, store, reproduce, modify, prepare derivative works (such as translations, adaptations, summaries or other changes), communicate, publish, publicly perform, publicly display, and distribute this content in any manner, modeof delivery or media now known or developed in the future; and (b) permit other users to access, reproduce, distribute, publicly display, prepare derivative works of, and publicly perform your content via the Services, as may be permitted by the functionality of those Services (e.g., for users to re-blog, re-post or download your content). In some of the Services, there may be specific terms or settings allowing a different scope of use of the content submitted in those Services. You must have the necessary rights to grant us the license described in this Section 6(b) for any content that you upload, share with or submit to the Services.
6) Modifying and Terminating the Services; Terminating Accounts
a) We are constantly innovating, changing and improving the Services. We may, without notice, add or remove functionalities or features, create new limits to the Services, or temporarily or permanently suspend or stop a Service.
b) You can stop using the Services at any time.
c) We may temporarily or permanently suspend or terminate your account or impose limits on or restrict your access to parts or all of the Services at any time, without notice and for any reason, including, but not limited to, violation of these Terms, court order, or inactivity.
d) Subject to any statutory rights you might have, if your account is terminated, access to your username, password, and all related information, files, and content associated with your account may be terminated and your username may be recycled for use by others
7) Our Warranties and Disclaimers
a) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OMNISCIENT, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, PARTNERS, LICENSORS AND DISTRIBUTORS (COLLECTIVELY OMNISCIENT ENTITIES) DO NOT MAKE ANY REPRESENTATIONS, PROMISES, OR WARRANTIES, EXPRESS OR IMPLIED, ABOUT THE SERVICES. WE PROVIDE OUR SERVICES “AS-IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” YOUR USE OF THE SERVICES, INCLUDING CONTENT WITHIN THE SERVICES, IS AT YOUR OWN RISK AND WE DO NOT REPRESENT, PROMISE, OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. YOU UNDERSTAND AND AGREE THAT NO DATA TRANSMISSION OVER THE INTERNET OR INFORMATION STORAGE TECHNOLOGY CAN BE GUARANTEED TO BE SECURE, AND OMNISCIENT EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, TO THAT EFFECT. WE MAKE NO COMMITMENTS, PROMISES OR WARRANTIES ABOUT THE CONTENT WITHIN THE SERVICES OR CONTENT LINKED FROM THE SERVICES, THE SUPPORT WE PROVIDE FOR THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES, THE SECURITY OF THE SERVICES, OR THE SERVICES’ RELIABILITY, QUALITY, ACCURACY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS, PROVIDE CERTAIN OUTPUTS OR ACHIEVE CERTAIN RESULTS.
b) SOME JURISDICTIONS PROVIDE FOR CERTAIN IMPLIED WARRANTIES, SUCH AS THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED OR EXPRESS PROMISES OR WARRANTIES ABOUT THE SERVICES.
8) Limitation of Liability
– TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE AND UNDERSTAND THAT OMNISCIENT ENTITIES WILL NOT BE LIABLE FOR: ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, TREBLE OR OTHER MULTIPLES OF DAMAGES, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE SERVICES. OMNISCIENT ENTITIES ARE NOT RESPONSIBLE FOR ANY LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, DIMINUTION IN VALUE, INCLUDING ANY ALLEGED LOSS OR DIMINUTION IN VALUE OF PERSONAL INFORMATION, OR ANY OTHER LOSSES (COLLECTIVELY, “LOSSES”) ARISING FROM OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF OR ACCESS TO THE SERVICES, INCLUDING, BUT
NOT LIMITED TO, LOSSES RESULTING FROM OR IN CONNECTION WITH: THE DELETION OF, ALTERATION OF, MIS-DELIVERY OF, OR FAILURE TO STORE DATA MAINTAINED OR TRANSMITTED BY THE SERVICES; THE LIMITING, SUSPENSION OR TERMINATION OF YOUR ACCOUNT; YOUR DOWNLOADING OR SHARING OF INFORMATION, INCLUDING PERSONAL INFORMATION, VIA THE SERVICES; THE UNAUTHORIZED ACCESS TO YOUR ACCOUNT OR ANY DATA MAINTAINED OR TRANSMITTED BY THE SERVICES; LINKS PROVIDED BY THE SERVICES OR THIRD PARTIES TO EXTERNAL SITES OR RESOURCES; YOUR DEALINGS WITH OR PARTICIPATION IN PROMOTIONS OF ADVERTISERS FOUND ON OR THROUGH THE SERVICES; OR ANY GOOD OR SERVICES SOLD BY SUCH ADVERTISERS. OMNISCIENT ENTITIES WILL NOT BE LIABLE FOR PROBLEMS CAUSED BY OTHERS, THE WRONGFUL OR UNLAWFUL ACTIONS OF THIRD PARTIES, OR AN ACT OF GOD. THE LIMITATIONS AND EXCLUSIONS IN THESE TERMS WILL APPLY WHETHER OR NOT OMNISCIENT HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY LOSSES ARISING. TO THE FULLEST EXTENT PERMITTED BY LAW OMNISCIENT ENTITIES ARE NOT LIABLE IN CONNECTION WITH ANY DISPUTES THAT ARISE OUT OF OR RELATE TO THESE TERMS OR SERVICES FOR ANY AMOUNT GREATER THAN THE AMOUNT YOU PAID TO US FOR THE SERVICES.
– You agree that any recommendation, idea, proposal, suggestion, feedback or other input (“Feedback”) you submit to Omniscient related to its products, services, websites, apps, or technology may be used by Omniscient without any notice, obligation, restriction, reimbursement or compensation to you and you waive (or agree not to enforce) any and all rights that may now or in future exist (including moral and equivalent rights) in any Feedback.
10) Fee-Based Services and Billing.
Unless otherwise specified in the additional terms that apply to the Services you are using, the terms in this Section 11 apply to you.
a) We offer products and subscriptions for a fee (“fee-based Services”). These fee-based Services are governed by the additional terms you agree to when you register for the fee-based Service and these Terms. If you register for a fee-based Service, you must designate a payment method and provide us with accurate billing and payment information and you have the continuing obligation to keep it up to date. Fee-based Services require you to have, or register for an Omniscient ID.
b) The following important provisions apply to all of our fee-based services:
ii) Payments. You represent that you are at least the minimum age required to enter into a legal agreement. You agree to pay us for any fee-based Services you purchase from us, as well as all other charges incurred under your account, including applicable taxes and fees. You are responsible for all charges incurred under your account, including purchases made by you or anyone you allow to use your account or any sub-or linked accounts (including any person with implied, actual, or apparent authority) or anyone who gains access to your account as a result of your failure to safeguard your authentication credentials.
iii) Payment Methods. You authorize and direct us to charge your designated payment method for these charges or, if it fails, to charge any other payment method you have on file with us, even if we received it in association with other fee-based services. You are responsible for all charges even if your payment method fails or is denied. You authorize and direct us to retain all information about any payment method(s) associated with your account. We may import payment information you entered during a prior purchase and provide you the option to use that payment information during purchase of a new product. You permit us to obtain and use updated information from the issuer of your payment method in accordance with the policies and procedures of any applicable card brands. We may in some instances continue charging a payment method past its expiration date at our discretion and subject to the payment processors’ or issuing bank’s approval. Surcharges may apply if you use certain payment methods, such as payment from your checking or savings account.
iv) Payment Terms. We may charge for fee-based Services in advance and on a daily, monthly, yearly, lump sum, or other basis in accordance with the stated terms, as long as your subscription remains active, even if you have not downloaded or used the Service or accessed your online account.
v) Auto-Renewal. We use auto-renewal for many of our fee-based Services. At the expiration of each subscription term for such fee-based Services, we will automatically renew your subscription and charge the credit card or other payment method you have provided to us, unless you cancel your subscription at least 48 hours before the end of the current period. Your subscription will be automatically renewed at the then-current price, excluding promotional and discount pricing. We may, in our sole discretion, post charges to your payment method individually or aggregate charges for some or all of your fee-based Services with us.
vi) Fraud Protection. We may take steps to verify the validity of the credit card information you provide to us, including debiting amounts less than $1.00 from your credit card and then immediately crediting it back. You authorize us to do so for verification and anti-fraud purposes.
vii) Free Trials. We may offer you free trials, so that you may try a fee-based Service subscription without charge or obligation (“Free Trial”). Unless otherwise stated and unless you cancel your subscription prior to the expiration of the Free Trial, periodic subscription fees will be charged at the then-applicable rate upon expiration of the Free Trial period and will continue to be charged until the subscription is canceled. If you are not satisfied with a particular fee-based Service, you must cancel the subscription before the Free Trial ends to avoid charges. We reserve the right to limit you to one free trial or promotion of a fee-based Service and to prohibit the combining of free trials or other promotional offers.
viii) No Refunds. All charges are nonrefundable unless provided otherwise in the terms you agree to when you register for a fee-based Service, or as otherwise specified below.
ix) Termination. We, in our sole discretion, may change, discontinue or terminate any or all aspects of a fee-based Service without notice, including access to support services, content and other products or services ancillary to the fee-based Service, subject to providing an appropriate refund for any portions of a specified but no longer available term. You may cancel a fee-based Service at any time by logging into your online account and terminating the subscription.
x) Change in Fees and Billing Method. We may change our fees and billing methods at any time. We will provide you with notice of any price increase at least thirty (30) days in advance. Subject to applicable law, (i) if you disagree with any proposed change, your sole remedy is to cancel your fee-based Service before the price change takes effect and (ii) your continued use of or subscription to the Service after the price change takes effect constitutes your agreement to pay the new price for the Service.
xi) Delinquency. After 30 days from the date of any unpaid charges, your fee-based Service will be deemed delinquent and we may terminate or suspend your account and fee-based Service for nonpayment. You are liable for any fees, including attorney and collection fees, incurred by us in our efforts to collect any remaining balances from you.
xii) 90-Day Notice Period. You must notify us about any billing problems or discrepancies within 90 days after they first appear on your billing method statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies.
11) About these Terms
a) Third Party Beneficiaries and Conflicts. These Terms control the relationship between Omniscient and you. They do not create any third party beneficiary rights. If there is a conflict or inconsistency between the terms in this document and the additional terms associated with a particular Service, the additional terms will control solely for that conflict or inconsistency.
b) Modification of the Terms. We may modify the Terms from time to time. Unless we indicate otherwise, modifications will be effective as of the date they are posted on this page or any successor page. You should look at the Terms regularly. We will provide notice (in accordance with Section 2(c) above) of material modifications.
c) Continued Use of the Services. You may stop using the Services at any time, but your continued use of or subscription to a Service after the effective date of any modifications to the Terms or the means that you agree to the Terms as modified.
d) Waiver and Severability of Terms. The failure of Omniscient to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision (or part of a provision) of these Terms is found to be invalid, Omniscient and you nevertheless agree to give effect to the intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
e) Assignment by Omniscient. Omniscient may freely assign these Terms and all of the policies and other documents incorporated or referenced in it (including all rights, licenses, and obligations under it or them), in whole or in part and without notice, for any reason, including for the purpose of internal restructuring (for example, mergers or liquidations).
12) Provider of Services
– The Services are provided by the company that offers the Services as set out in (the “Applicable Omniscient Company”. Not all Services or features may be available in your country or region. Different features may be available in different versions of the Services.
a) BINDING ARBITRATION AGREEMENT. AGREEMENT TO ARBITRATE FOR U.S. USERS. YOU AND OMNISCIENT BOTH AGREE TO RESOLVE ANY AND ALL DISPUTES, CONTROVERSIES OR CLAIMS THAT IN ANY WAY ARISE OUT OF OR RELATE TO THESE TERMS OR FROM ANY SERVICES YOU RECEIVE FROM US (OR
FROM ANY ADVERTISING FOR ANY SUCH SERVICES), INCLUDING ANY DISPUTES BETWEEN YOU AND OUR EMPLOYEES OR AGENTS (“DISPUTE(S)”), ONLY BY ARBITRATION ON AN INDIVIDUAL BASIS OR IN SMALL CLAIMS COURT. YOU UNDERSTAND THAT BY AGREEING TO THESE TERMS, ARBITRATION OR A SMALL CLAIMS ACTION WILL BE THE SOLE AND EXCLUSIVE MEANS OF RESOLVING ANY DISPUTE BETWEEN US. YOU ALSO UNDERSTAND THAT BY AGREEING TO THESE TERMS, YOU AND OMNISCIENT ARE GIVING UP THE RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A JURY (EXCEPT FOR MATTERS THAT MAY BE BROUGHT IN SMALL CLAIMS COURT), AND THAT YOU AND OMNISCIENT ARE GIVING UP THE RIGHT TO PROCEED WITH ANY CLASS ACTION OR OTHER
REPRESENTATIVE ACTION. WHILE ARBITRATION PROCEDURES MAY BE DIFFERENT THAN COURT PROCEDURES, AN ARBITRATOR CAN AWARD YOU
INDIVIDUALLY THE SAME DAMAGES AND RELIEF AS A COURT, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED
AND ENFORCED IN ANY COURT HAVING JURISDICTION THEREOF. THE PARTIES UNDERSTAND THAT ABSENT THIS MANDATORY PROVISION, THEY
WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF
ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
We also both agree that:
i) Notice of Dispute.
If either you or Omniscient intends to arbitrate under these Terms, the party seeking arbitration must first notify the other party of the Dispute in writing at least 30 days in advance of initiating the arbitration. Notice to Omniscient should be sent to Omniscient either by mail to Omniscient, Attn: Disputes, 1900 The Alameda, Suite 100, San Jose, CA 95126; or disputes@Omniscientcrm.com. Notice to you will be to your email address(es) and street address(es), if any, that Omniscient has in its records at the time the notice is sent. The notice must describe the nature of the claim and the relief being sought. If we are unable to resolve the Dispute within 30 days, either party may then proceed to file a claim for arbitration.
ii) Arbitration Procedure.
The Federal Arbitration Act applies to these Terms. Except for small claims court cases, any and all Disputes will be resolved by arbitration administered by the American Arbitration Association (“AAA”). The AAA will apply the Commercial Arbitration Rules to the arbitration of any Dispute pursuant to these Terms, unless you are an individual and use the Services for personal or household use, in which case the AAA’s Consumer Arbitration Rules will apply (excluding any rules or procedures governing or permitting class actions). You can get procedures (including the process for beginning an arbitration), rules and fee information from the AAA ( www.adr.org). These Terms govern to the extent they conflict with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.
iii) Arbitration Location.
Unless you and Omniscient agree otherwise, the arbitration must take place, or the small claims action must be filed, in the county of your primary residence or Santa Clara County, California.
iv) Arbitration Fees and Expenses.
We will reimburse any filing fee that the AAA charges you for arbitration of the Dispute. If you provide us with signed written notice that you cannot pay the filing fee, we will pay the fee directly to the AAA. If the arbitration proceeds, we will also pay any administrative and arbitrator fees charged
v) Settlement Offers.
We may, but are not obligated to, make a written settlement offer any time before or during arbitration. The amount or terms of any settlement offer may not be disclosed to the arbitrator unless and until the arbitrator issues an award on the claim. If you do not accept the offer and the arbitrator awards you an amount of money that is more than our offer but less than $5,000, we agree to: (a) pay you $5,000 instead of the lower amount awarded, (b) pay your reasonable attorney’s fees and costs, and (c) reimburse any arbitration filing fees and arbitrator fees and expenses incurred in connection with the arbitration of your Dispute. If the arbitrator awards you more than $5,000 and we are not challenging the award, then we
will pay you the amount of the award.
If any part of this agreement to arbitrate is found by a court of competent jurisdiction to be unenforceable, the court will reform the agreement to the extent necessary to cure the unenforceable part(s), and the parties will arbitrate their Dispute(s) without reference to or reliance upon the unenforceable part(s). However, if for any reason the Class Action Waiver set forth below in subsection 12.2.c cannot be enforced as to some or all of the Dispute, then the agreement to arbitrate will not apply to that Dispute or portion thereof. Any Disputes covered by any deemed unenforceable Class Action Waiver provision may only be litigated in a court of competent jurisdiction, but the remainder of the agreement to arbitrate will be binding and enforceable. To avoid any doubt or uncertainty, the parties do not agree to class arbitration or to the arbitration of any claims brought on behalf of others.
b. CLASS ACTION WAIVER FOR U.S. USERS. THESE TERMS DO NOT ALLOW CLASS OR COLLECTIVE ARBITRATIONS, EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE THE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. ARBITRATION OR COURT PROCEEDINGS HELD UNDER THESE TERMS CANNOT BE BROUGHT, MAINTAINED OR RESOLVED ON BEHALF OF OR BY A CLASS, AS A PRIVATE ATTORNEY-GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY. IN ADDITION, INDIVIDUAL PROCEEDINGS CANNOT BE COMBINED WITHOUT THE CONSENT OF ALL OF THE PARTIES. ANY QUESTION REGARDING THE ENFORCEABILITY OR INTERPRETATION OF THIS PARAGRAPH WILL BE DECIDED BY A COURT AND NOT THE ARBITRATOR.
c. JURY TRIAL WAIVER FOR U.S. USERS. IF FOR ANY REASON A DISPUTE PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND OMNISCIENT AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND OMNISCIENT UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM IN ANY WAY ARISING OUT OF OR RELATING TO THESE TERMS. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED
TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT.
d. Choice of Law. These Terms and the relationship between the parties, including any claim or dispute that might arise between the parties, whether sounding in contract, tort, or otherwise, will be governed by the laws of the State of New York without regard to its conflict of law provisions. In no event will the parties bring claims against one another under the laws of another jurisdiction.
e. Forum. If for any reason a Dispute proceeds in court rather than through arbitration, all such Disputes (regardless of theory) arising out of or relating to these Terms, or the relationship between you and Omniscient, will be brought exclusively in the courts located in the county of Santa Clara, California or the U.S. District Court for the Northern District of California. In such cases, you and Omniscient agree to submit to the personal jurisdiction of the courts located within the county of Santa Clara, California or the Northern District of California , and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
f. The Services are “commercial computer software” and “commercial
items” as these terms are used in the Federal Acquisition Regulation system, and the rights of the United States are only those rights as are granted to all other end users pursuant to the terms and conditions herein and will not exceed the minimum rights set forth in FAR 52.227-19.
g. You agree to not use the Services to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the
Immigration and Nationality Act.
IT in Support of the Omniscient Platform Use
1. CRM System. An OMNISCIENT representative will provide thorough training for OMNISCIENT’s proprietary CRM system prior to the RIA’s registration with OMNISCIENT. Failure to attend this training may delay significantly provision of Operations Transition Support Services.
2. Email Setup & Hosting.
OAS may host the email domain for all Investment RIA Representatives of RIA. OAS will assist the RIA in archiving past emails from the RIA’s business domain in order to access them post transition. Additionally, OAS will assist the RIA in moving a business email domain onto its servers for sending/receiving emails on a domain other than “@OMNISCIENTsrv.com” as a RIA. At the RIA’s request, OAS can assist the RIA in setting up OMNISCIENT email in Microsoft Outlook, provided that the RIA uses Microsoft Outlook 2007 or later.
3. Hardware. RIAs are strongly encouraged to purchase a desktop computer system with two monitor screens and an all-in-one printer-scanner as a basic office setup. As requested, OMNISCIENT’s IT department may provide technical specifications regarding optimal software and hardware. It is the responsibility of the RIA to purchase all hardware and software. On a case-by-case basis, OMNISCIENT may purchase hardware for the RIA’s use, in which case: the RIA will be invoiced for the cost of the hardware plus a convenience fee at a later date or OMNISCIENT is the owner of the hardware and may revoke use at any time. The RIA/firm is responsible
for the maintenance and support of their own desktop environment. Omniscient has no responsibility for equipment or operating system problems or troubleshooting. The data that resides on the RIA/firm’s desktop equipment is the sole responsibility of the firm/RIA, and care should be taken to provide regular backups and a secure environment.
4. Other Systems. Training resources (manuals, Frequently Asked Questions, and/or user guides) for other platforms and resources will be provided at registration. These platforms include OMNISCIENT’s internal document repository extranet system, and custodian platforms.
1. Accounting Services – Bookkeeping and Tax Preparation
– These services are provided as needed to firms at the hourly or project rate stated in the service agreement. Omniscient will provide the following services as part of this package: Accounts Payable, Accounts Receivable, Bill Payment, Detailed General Ledgers, Payroll and Check Registers, Bank Reconciliation, Financial Statements, Customized Reports, Budget Preparation, and Tax Preparation.
a. Bookkeeping support is for all users at the client’s office. Response will be within 6 hours of receiving a service ticket via the Omniscient platform. Services will only be provided with a documented service ticket.
b. Responsibilities – the firm will be solely responsible for supplying the accountant with all information needed to perform bookkeeping and tax preparation services under the services agreement. Omniscient will not be held responsible for the production of inaccurate financial statement, records and billings, or any other financial reports is the financial data submitted by the firm is inaccurate.
2. Billing and Reporting Services
– OMNISCIENT will assist firms to bill, collect, remit and account to firms all advisory fees earned during the specified billing period. OMNISCIENT will additionally provide monthly performance statements (“Reporting”) for all client accounts and provide said statements to the RIA through OMNISCIENT’s secure document portal. Some minimal level of customization is available for these services. These services and any customization thereof are performed according to the specifications and limitations contained herein.
a. Billing, Collection & Remission:
i) Coverage. OMNISCIENT standard billing is in-advance, based on the value of the account on the last business day of the billing period, as calculated by OMNISCIENT’s portfolio accounting system.
ii) Uniform Asset Pricing. OMNISCIENT recognizes that there may be minor differences between holdings values calculated by OMNISCIENT and values shown by the RIA’s custodian. This is because OMNISCIENT defaults securities pricing for all securities to those listed by one custodian of its choosing. OMNISCIENT reserves the right to change which custodian it uses for this function, and will not modify any billing due to minor price differences between custodians.
iii) Billing Period. OMNISCIENT allows RIAs to determine the billing period from the following choices: Calendar Quarter, Rolling Quarter, Monthly. OMNISCIENT strongly encourages RIAs to elect either Calendar Quarter or Monthly billing. i) Calendar Quarter: accounts will be billed based on calculated values on the last business day of: March, June, September and December, covering the three months following the billing date. ii) Rolling Quarter: billing periods for Rolling Quarter are of three months’ duration, with the first period beginning at the time at which the account in incepted or by electing the cycle on the investment advisory contract. Billing is based on calculated values on the last business day of the month prior to the billing period. iii) Monthly: accounts will be billed based on calculated values on the last business day of each month.
iv) Application of Fees. OMNISCIENT conducts billing on an account basis. RIAs who wish to bill on an asset class basis must segregate all assets belonging to that particular asset class into a unique account(s) containing only assets of that same class.
a. All assets in an account will be billed at that account’s fee rate, as specified by the RIA, with the exception of specific assets which the RIA requests to be left out of billing (“put below the line”). OMNISCIENT does not automatically place positions “below the line” based on certain situations: the RIA must make a request to OMNISCIENT. Likewise, OMNISCIENT does not monitor specific positions and automatically move them “above the line” based on certain situations: the RIA must make a request to OMNISCIENT to have an asset re-included into normal billing.
b. OMNISCIENT may, at the RIA’s request, bill certain accounts as a group at a certain fee rate. OMNISCIENT will not make assumptions about grouping. The RIA is responsible for clearly notifying OMNISCIENT of grouped accounts for billing purposes, and assumes full responsibility for any billing errors as a result of their failing to do so.
v) Liability for Inaccurate Fees. OMNISCIENT will provide, through its secure document portal, a pro forma billing statement to the RIA five business days prior to the billing date to ensure that all accounts are billed at the appropriate rate, according to the RIA. Upon receipt of this document, the RIA assumes full responsibility for fees applied at the billing date. OMNISCIENT operates on negative consent regarding the accuracy of the pro forma statement, and will bill all accounts according to the pro forma statement unless as notified otherwise by the RIA prior to the billing date.
a. OMNISCIENT will provide, through its secure document portal, a pro forma billing statement to the RIA five business days prior to the billing date to ensure that all accounts are billed at the appropriate rate, according to the RIA. This report is provided as a reconciliation tool for customers on a negative consent basis. If customer does not respond with any changes, OMNISCIENT will assume all calculations are correct and approved by advisor and produce a final billing file and report based on this understanding.
b. OMNISCIENT will reconcile all account holdings and values on the first business day of the billing period. Accounts are billed on the same business day.
c. OMNISCIENT will begin producing production reports for the benefit of the RIA on the second business day of the billingperiod, which may take up to three business days to complete.
d. A gross fee calculation will be made available to the RIA on the fifth business day of the billing period, and OMNISCIENT provide a final billing file no later than the 5th business day of the billing period.
b. Reporting. OMNISCIENT will provide monthly performance reports for all accounts through its secure document portal. RIA may choose to use the default
client presentation, or create a customized client presentation. Customization is limited to certain specifications. Performance reporting begins on the fourth business day of the month, and become available through OMNISCIENT’s secure document portal on the eighth business day of the month.
– Pro forma performance reports accurate to within one business day are available through Omniscient CRM. RIAs must have a user license for Omniscient CRM in order to view these reports, and must have a contact record for their client in the system. OMNISCIENT does not provide these reports for the RIA, but the RIA may access these reports themselves at any time by logging into Omniscient CRM. Augmented reporting capabilities may be available to ENVESTNET users. Please refer to your ENVESTNET Terms & Conditions, accordingly.
3. Financial Planning Desk Services
– This Service Agreement (“Agreement”) is made by and between OMNISCIENT Advisor Solutions (“OAS”), and the RIA (“RIA” or “User”). This Agreement
sets forth the general terms and conditions of User’s access to and use of OMNISCIENT’s Financial Planning Desk or MoneyGuidePro (the “Service(s)”),
with the following facts and circumstances.
a. Financial Plan Turnaround Time.
Financial Plans will be produced by OAS within 48-72 hours of receiving a completed client profile from the User, assuming the client profile is complete and in good order. If the client profile is incomplete the User has one (1) opportunity to complete the incomplete client profile before the financial plan is finalized and produced. Once the financial plan is produced, the User will be able to retrieve it from OMNISCIENT’s technology platform.
Each financial plan produced will use default settings and cannot be adjusted. The default settings include, but not limited to, capital market assumptions, global planning defaults, classification overrides, customization of asset classes and portfolios, and custom disclosure language. Completed financial plans created through OAS will contain OMNISCIENT branding and will not have the ability to be custom branded.
c. Pricing and Payment.
For pricing of the Service, refer to the pricing guide. The cost of the Service will be taken directly out of the Users commission and/or fees collected.
d. Limitation of Liability.
Verifying accuracy of plan inputs as well as output is the User’s responsibility. OMNISCIENT is not responsible for any financial action taken as a result of the financial plan.
e. Financial Planning software licenses.
OAS will use the RIA/firm’s software license for performing financial planning on behalf of the firm. The firm will ensure that a current, valid license is available for use at the time of service request.
– By signing in, and checking the box on any of the Omniscient login screens, You attest that you have reviewed, understand and agree to abide by OMNISCIENT’s “Terms & Conditions of Service” without exception. I understand that material disregard of these terms may, at the sole discretion of OMNISCIENT management, precipitate special penalty charges, or otherwise affect my continued access the any OMNISCIENT platform, employment status or fees payable from the firm.