Omneky Services Agreement
Last Updated: August 27, 2025
This Services Agreement (“Agreement”) is by and between Omneky, Inc. (“Omneky”, “we”, “us”, or “Company”) and the entity indicated on the signature block below (“You,” or “Customer”).
BY EXECUTING THIS AGREEMENT, REGISTERING FOR OR USING AN ACCOUNT (“ACCOUNT”) OR BY ACCESSING THE SERVICES, YOU UNCONDITIONALLY AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT CUSTOMER IS FULLY RESPONSIBLE FOR THE ACTS AND OMISSIONS OF ANY INDIVIDUALS ACCESSING THE SERVICES THROUGH YOUR ACCOUNT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT EXECUTE THIS AGREEMENT AND DO NOT ACCESS OR USE THE SERVICES.
Omneky reserves the right, at its sole discretion, to modify this Agreement at any time. If we modify this Agreement, we will post the modification on our website or provide other notice to you. By continuing to use the Services after we have posted a modification, you are indicating that you agree to be bound by the modified Agreement.
1. Services.
1.1. Service Tiers.
Omneky will provide the Services which correspond with the service level tier as described on Exhibit A or otherwise selected by Customer via the Platform.
1.2. Platform License Grant.
Platform License Grant. Subject to the terms and conditions of this Agreement, Omneky grants Customer a non-transferable, nonexclusive right, during the Term to use the Platform and to access the Services for its internal use only.
1.3. Restrictions.
Customer will use the Services and access the Platform in accordance with any documentation or instructions supplied by Omneky. Except as specifically provided herein, Customer will not modify or copy the Services any portion thereof and shall not demonstrate, market, reuse, copy, modify, translate or create derivative works of the Services or any portion thereof, rent, sell, lease, transfer or otherwise make available the Services or any portion thereof, or use it or any portion thereof for the benefit of a third party. Customer shall not dissemble, de-compile, reverse assemble, reverse compile or reverse engineer the Services or any portion thereof, or otherwise attempt to discover any source code or underlying proprietary information. Customer shall not use any information in any way related to or acquired by use of the Services for the prospective economic advantage of any third party.
1.4. Service Level and Support:
Omneky will use commercially reasonable efforts to make the Services available to Customer. Omneky makes no representations or guarantees regarding service availability. Any downtime resulting from outages of third-party connections, utilities, or other reasons beyond Company’s control are expressly excluded. Customer's sole and exclusive remedy for any service interruption shall be to terminate this Agreement in accordance with Section 3. Omneky will provide technical support during its standard business hours.
1.5. Campaign Management and Disclaimer of Liability
If applicable to Customer’s selected Services Tier, Omneky may provide campaign management services. Customer acknowledges that all such services are rendered at the express direction of Customer and through Customer’s own third-party ad accounts. Customer retains ultimate authority, control, and responsibility for all aspects of its ad accounts, budget, and campaign strategy.
Omneky expressly disclaims all liability for and makes no guarantees regarding the performance or effectiveness of any ad campaigns. Customer is solely responsible for all outcomes, costs, and consequences arising from its ad campaigns. Without limiting the foregoing, Omneky shall not be liable for: (a) campaign performance, return on investment (ROAS), conversion rates, or any other performance metric; (b) budget allocation and management, including any accidental overspending, budget depletion, underspending, or pacing; (c) compliance with any third-party ad platform’s (e.g., Meta, Google, TikTok) terms of service, advertising policies, or community standards; (d) the rejection, removal, or failure to deliver any ads by an ad platform; or (e) the suspension, restriction, or termination of any of Customer’s ad accounts.
All campaign management services are provided "AS IS" and "AS AVAILABLE" without warranties of any kind.
1.6. AI Tools.
- Certain features of the Services use artificial intelligence models, tools, and other technology (collectively, "AI Tools") to generate suggested text, information, results, images, and other materials (collectively, "Output") in response to Customer Materials (defined below) that you submit to the Services ("Input"). Both Input and Output are considered Customer Materials under these Terms, and as between you and Company, you own all right, title, and interest in and to any Input and Output, to the extent protectable under applicable law. The AI Tools may include artificial intelligence and other tools and technologies provided by third parties, and you acknowledge and agree that (A) your use of the AI Tools may involve access to your Inputs and Outputs by Company and/or such third parties and that such access may be occur pursuant to agreements you enter into with those third parties, rather than or in addition to these Terms, (B) such tools and technologies are Third-Party Services and the providers thereof are Third-Party Service Providers and, as such, are subject to the terms and disclaimers in Section 7, and (C) you consent and authorize Company to share any information you provide it with such third parties. Without limiting the foregoing, you acknowledge and agree that the Services currently use, among other Third-Party Services, OpenAI and you agree to be bound by OpenAI's usage policies available at https://openai.com/policies/usage-policies/.
- You understand that due to the nature of the AI Tools, Output you generate may not be unique, and it is possible that the AI Tools may generate the same or similar Output for other users if the Inputs are similar. You acknowledge that the use of such AI Tools may affect your ability to obtain or enforce any intellectual property rights in or to the Output.
- YOU ACKNOWLEDGE THAT ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING TECHNOLOGIES ARE RAPIDLY EVOLVING AND MAY PRODUCE OUTPUT THAT IS INACCURATE, UNRELIABLE, INAPPROPRIATE, INFRINGING, OR OTHERWISE UNSUITABLE OR THAT DOES NOT MEET YOUR EXPECTATIONS.
- Without limiting the other restrictions or provisions of these Terms, you agree not to use the AI Tools or resulting Output in a manner that may infringe upon or violate the rights of any third party or violate any applicable laws, rules, or regulations, and you acknowledge and agree that (A) you are solely responsible for vetting and evaluating the accuracy, appropriateness, legality, and suitability for your use of any Output before using it, including evaluating whether such use will infringe upon or violate the rights of others, (B) you assume all risk associated with your use of the AI Tools and the resulting Output, and (C) Company will have no liability for such use
- Omneky will only use and share your Input, Output or other Customer Materials as necessary to provide the Services to you. You will have the ability to choose via the Platform which Third-Party Servicers or AI Tools that you utilize, as well as the extent of such use. Omneky will not use your Input, Output, or other Customer Materials to train, improve or develop its Services. However, you acknowledge and agree that any Third-Party Service Providers or AI Tools that are selected by you will receive your Input, Output and/or other Customer Materials as needed for the provision of such Third-Party Services, and they may use your Input, Output or and/or other Customer Materials as set forth in their applicable terms and conditions, including, if applicable, to potentially train, improve or develop such technologies in accordance with their terms. If you do not wish to allow such usage, you may select Third-Party Services or AI Tools that do not engage in such use, and work with Omneky to modify your usage of the Platform or Services.
YOU ASSUME ALL RISK ASSOCIATED WITH YOUR USE OF THE AI TOOLS AND THE RESULTING OUTPUT. OMNEKY WILL HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF THE AI TOOLS OR ANY OUTPUT, INCLUDING ANY CLAIMS THAT THE OUTPUT INFRINGES UPON OR VIOLATES THE RIGHTS OF OTHERS. Notwithstanding anything to the contrary, Omneky shall have the right to collect and analyze data and other information relating to the provision, use, and performance of the Services (including, without limitation, Customer Materials and Output). Omneky may use such information and data (during and after the term hereof) in an aggregated and anonymized form to improve and enhance the Services and for other development, diagnostic, and corrective purposes.
2. Fees and Payment.
2.1. Fees.
Customer will pay Company the then applicable fees for the selected Services Tier as described in Exhibit A or on the Platform (the “Fees.”) The Fees for the selected Services Tier may be comprised of three components: (a) a recurring subscription fee (“Subscription Fee”), (b) a usage-based fee (“Usage Fee”), and (c) a fee based on a percentage of monthly ad spend (“Ad Spend Fee”), as described in Exhibit A or on the Platform.
The Subscription Fee provides access to a specific set of platform features and capabilities and is typically billed on a recurring basis (e.g., monthly or annually). The Usage Fee is calculated based on Customer's consumption of specific platform resources, which may include but is not limited to the number of ad creatives generated, AI model usage, or data processing volume. The Ad Spend Fee is calculated as a percentage of the Customer's advertising spend managed by or tracked through the Services during a given period.
Unless otherwise specified in Exhibit A, Subscription Fees are billed in advance. Usage Fees and Ad Spend Fees are calculated in arrears and will be billed monthly. For clarity, a Subscription Fee may include a certain allowance of usage, with any overages charged as a Usage Fee. The specific rates, allowances, and thresholds for all Fees are set forth in Exhibit A or on the Platform.
Omneky reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term (as defined below) or the current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department by emailing hi@omneky.com.
2.2. Payment.
Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate of Service (“Late Fees”). You agree that Omneky may bill your credit card or other payment method for renewals, Late Fees and unpaid Fees, as applicable.
2.3. Taxes.
Each party is responsible for identifying and paying all taxes and other governmental fees and charges that are imposed on that party by applicable law with respect to the transactions and payments under this Agreement.
3. Term and Termination.
3.1. Term.
The initial term of this Agreement shall be for one (1) year (“Initial Term”). Following the Initial Term, this Agreement will automatically renew for successive one (1) year periods (each a “Renewal Term”) unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
3.2. Termination.
Either party may terminate this Agreement for the other party’s material breach if such breach remains uncured for thirty (30) days following written notice. Omneky reserves the right to suspend or terminate this Agreement and your access to the Services immediately, with or without cause, and without notice or liability.
3.3. Effect of Termination.
Upon termination, Customer shall immediately cease all use of the Services and pay any outstanding fees owed to Omneky. All sections of this Agreement which by their nature should survive termination will survive.
4. Intellectual Property.
4.1 Customer Materials.
As between the parties, and to the extent permitted by applicable law, Customer shall retain ownership of all materials, any content, trademarks, copyrights and logos provided to Omneky by or on behalf of Customer to facilitate the provision of the Services (“Customer Materials”). Customer hereby grants Omneky a royalty free, worldwide, sublicensable right to use, display, copy and reproduce all Customer Materials to perform the Services. Omneky shall not be responsible for any fines, judgments, losses or other damages caused by Omneky’s use of the Customer Materials as directed by Customer in any campaign or advertisement produced in provision of the Services. Customer agrees that additional terms may apply with respect to Third-Party Services.
4.2. Work Product.
Omneky shall own all right, title, and interest in and to all work product, including advertisements and creatives, created by or through the Services (collectively, the “Work Product”). Subject to Customer's full and timely payment of all applicable Fees, Omneky grants Customer a non-exclusive, non-transferable, royalty-free license, during the Term, to use the Work Product solely for Customer’s own advertising campaigns.
4.3 Data Security.
Omneky is SOC2 Certified and will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Platform (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. Omneky shall promptly notify Customer of any breach of the security and integrity of its system, including any unauthorized access, virus, or malware of which it becomes aware.
4.4. Services and Platform.
Omneky is the owner of the Services and Platform, including any templates created by Omneky.
4.5. Marketing and Promotional Use.
Customer hereby grants Omneky a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable right and license to use, reproduce, modify, display, distribute, and create derivative works of any Work Product and Customer Materials for Omneky’s marketing, advertising, and promotional purposes, including on its website, in case studies, and in other marketing materials.
5. Confidentiality.
5.1. Confidential Information.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take strict precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, as can be evidenced by appropriate written documentation, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, as can be evidenced by appropriate written documentation. Each party may also disclose Proprietary Information in response to a valid order of a court or other governmental body or as otherwise required by law to be disclosed; provided that, the responding Party gives sufficient notice to the disclosing party to enable the disclosing party to take protective measures, and/or in any event only disclose the exact Proprietary Information, or portion thereof, specifically requested.
6. Publicity; Non-Solicitation.
6.1. Publicity.
Customer agrees that Omneky may publicly identify Customer as a user of the Services and may use Customer’s name, logo, and trademarks on its website and in any promotional or other materials without prior consent.
6.2 Non-Solicitation.
Each Party agrees not to interfere in any employment relationships between the other Party and its employees. Each Party agrees that during the term of this Agreement and for one (1) year after the termination of this Agreement not to hire, solicit or otherwise engage any employee of the other Party whether as an employee or independent contractor. The Parties further agree not to solicit or encourage any employee of the other Party to terminate, alter or modify their employment with the other Party. The provisions of this Section 6 shall not apply with respect to a Party’s employees who seek employment from the other Party on their own initiative, such as, but not limited to, in response to a general solicitation, announcement or advertisement for employment with such Party.
7. Third-Party Services.
7.1 Third-Party Services.
The Services rely on, interoperate with, or otherwise utilize or leverage third-party products or services (such services, "Third-Party Services" and the providers of such Third-Party Services, "Third-Party Service Providers"). These Third-Party Services are beyond our control, but their operation may impact, or be impacted by, the use and reliability of the Services. You acknowledge that (i) the use and availability of the Services is dependent on Third-Party Service Providers and (ii) these Third-Party Services may not operate reliably 100% of the time, which may impact the way that the Services operate. Company does not make any warranties or guarantees with respect to Third-Party Services, including, without limitation, the performance or continued availability of Third-Party Services and Company may (either itself or as required by the Third-Party Service Provider) limit or cease providing interoperation with any or all Third-Party Services (and, as a consequence, certain or all features of the Services may be limited or ceased) without entitling you to any refund, credit, or other compensation if, for example and without limitation, the Third-Party Service Provider ceases to make the Third-Party Service available for interoperation or use with the Services in a manner acceptable to us. COMPANY WILL NOT BE LIABLE FOR, AND COMPANY EXPRESSLY DISCLAIMS, ANY LIABILITY FOR LOSSES, COSTS, OR EXPENSES TO THE EXTENT CAUSED BY ANY THIRD-PARTY SERVICES OR THIRD-PARTY SERVICE PROVIDERS OR FOR YOUR COMPLIANCE (OR NON-COMPLIANCE) WITH ANY APPLICABLE THIRD-PARTY TERMS (as defined below), EACH OF WHICH ARE YOUR EXCLUSIVE RESPONSIBILITY AND LIABILITY.
7.2 Additional Terms.
Your access to and use of the Services may subject you to additional terms, conditions, and policies applicable to Third-Party Services (including terms of service or privacy policies of the applicable Third-Party Service Providers) ("Third-Party Terms"). You are responsible for complying with all Third-Party Terms and Company is not, and will not be deemed to be, a party to any Third-Party Terms, all of which are exclusively between you and the applicable Third-Party Service Provider(s). Additionally, you are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.
8. Representations and Warranties.
8.1. Representation and Warranties.
Each Party represents and warrants that (a) it has the full power and authority to enter into this Agreement; (b) this Agreement has been executed by a duly authorized representative of such Party and contains the valid and binding obligations and agreements of such Party, enforceable against such Party, in accordance with all of the terms contained herein, subject to applicable bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights; (c) all obligations to be performed hereunder will be performed with all reasonable care, skill and diligence; (d) it has all necessary and appropriate rights to fulfill its obligations hereunder; (e) it will comply with all applicable laws and regulations of any jurisdiction in which the Party acts; and (f) its employees and agents will use reasonable efforts to comply with all applicable policies and standards of the other Party related to the applicable Services.
8.2. Disclaimer of Warranty.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND ANY OUTPUT ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, OMNEKY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, AND RELIABILITY. OMNEKY DOES NOT WARRANT THAT THE SERVICES OR OUTPUT WILL BE ERROR-FREE OR UNINTERRUPTED.
9. Indemnification.
9.1. Indemnification:
Customer shall indemnify, defend, and hold Omneky and its officers, directors, employees, and agents harmless from and against all Claims arising from or related to (a) any third-party claim that Customer Materials or Customer’s use of the Work Product infringes a third party’s intellectual property or publicity rights; (b) Customer’s breach of this Agreement, applicable law, or regulation; (c) Customer’s gross negligence or willful misconduct; or (d) any claim arising out of the use, display, or distribution of any Output or Work Product.Omneky provides no indemnification to Customer under this Agreement.
9.3. Indemnification Procedure.
The indemnities in this Section 9 are contingent upon: (a) Omneky promptly notifying Customer in writing of any claim which may give rise to a claim for indemnification hereunder; (b) Customer being allowed to control the defense and settlement of such claim, provided that Customer shall not make any settlement of any claims that may give rise to liability of Omneky without the prior written consent of Omneky; and (c) Omneky cooperating with all reasonable requests of Customer (at Customer’s expense) in defending or settling a claim. Omneky will have the right, at its option and expense, to participate in the defense of any suit or proceeding through a counsel of its own choosing.
9.4 Insurance.
Omneky shall carry industry standard insurance for the term of the Agreement.
10. Limitation of Liability.
IN NO EVENT WILL OMNEKY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT LOSS, DAMAGE OR EXPENSE. THE MAXIMUM AGGREGATE LIABILITY OF OMNEKY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID BY CUSTOMER TO OMNEKY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Notices.
Any notices or communications regarding this Agreement from one Party to the other shall be in writing and will be effective when (a) personally hand-delivered to the Party for whom intended (b) upon confirmation of receipt when sent by overnight courier, signature requested; (c) after five (5) days following deposit of the same into the United States mail (certified mail, postage prepaid and return receipt requested) when addressed to such other Party at the address specified in the opening paragraph or such other address as either Party may from time to time designate in writing to the other Party, or (d) upon confirmation of receipt by email.
12. General Provisions.
12.1. Force Majeure.
In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, including but not limited to acts of god, acts of war or breaches of the peace, acts of terrorism or threatened acts of terrorism, riots, civil disturbances, labor disturbances, strikes, lockouts, failure of a telecommunications or power carrier to provide adequate service, inadequacy or failure of a carrier or shipper, governmental regulations or interference, or any similar or dissimilar causes beyond the reasonable control of a party, the Party affected in its performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence. However, should the affected Party’s inability to perform continue for a period of thirty (30) days or more, the other Party may terminate this Agreement by providing ten (10) days’ prior written notice to the affected Party.
12.2. Waiver and Severability.
The waiver by either Party of a breach or a default of any provision of this Agreement by the other Party will not be construed as a waiver of any succeeding breach of the same or any other provision, nor will any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such Party. The rights and remedies of the parties set forth in this Agreement are in addition to any rights or remedies the parties may otherwise have at law or equity. If any term or provision of this Agreement shall be found by a mediator, arbitrator, or court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same will not affect the other terms or provisions hereof or the whole of this Agreement, but such provision will be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced
accordingly, preserving to the fullest extent possible the intent and agreements of the Parties set forth herein.
12.3. Assignment.
This Agreement, and the rights and obligations hereunder, may not be assigned, transferred and/or delegated in whole or in part by either Party, except to a successor to the whole of either Party’s business in a change of control event, without the prior written consent of the other Party. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions will be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto.
12.4. Entire Agreement.
This Agreement and the Order Form (if any) constitute the entire and final agreement between the Parties with regard to the subject matter hereof. No waiver, consent, modification or change of terms of this Agreement will bind either Party unless agreed upon in writing and signed by both Parties, and then such waiver, consent, modification or change will be effective only in the specific instance and for the specific purpose given.
12.5. Governing Law; Arbitration.
This Agreement shall be governed by the laws of the State of California. ANY CLAIM OR CONTROVERSY SHALL BE SUBMITTED TO FINAL AND BINDING ARBITRATION in Santa Clara County, California. ... [Existing arbitration clause remains] ... THE PARTIES UNDERSTAND THAT BY AGREEING TO BINDING ARBITRATION THEY ARE WAIVING THE RIGHT TO A TRIAL BY JURY.
12.6. Independent Contractor Status of the Parties.
The Parties and their respective personnel are and shall continue to be independent contractors with respect to each other. By virtue of this Agreement, neither party or its personnel, agents and/or contractors shall become, and under no circumstances shall be construed as being, an employee, agent, joint venture, partner or affiliate of the other Party or as standing in any relationship with respect to the other Party that would impose liability on the other Party for the actions or omissions of such Party, its personnel or its contractors.