This Services Agreement (“Agreement”) by and between Omneky, Inc. (“Omneky”) and the Company, Organization or Entity indicated on the signature block below (“You,” or “Customer”) governs your access to Omneky’s personalized ad design and analytic services as further described on Exhibit A (the “Services”). BY EXECUTING THIS AGREEMENT, REGISTERING FOR OR USING AN ACCOUNT (“ACCOUNT”) AND/OR BY ACCESSING THE SERVICES, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS OF THIS SERVICES AGREEMENT ON BEHALF OF YOURSELF AND THE COMPANY OR ORGANIZATION IDENTIFIED AS THE CUSTOMER IN THE OMNEKY PORTAL. YOU FURTHER AGREE THAT SUCH CUSTOMER WILL BE RESPONSIBLE FOR THE ACTS AND OMISSIONS OF ANY INDIVIDUALS OR OTHER USERS WHO REGISTER FOR, ACCESS OR USE THE SERVICES THROUGH YOUR ACCOUNT. IF YOU AND/OR CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT EXECUTE THIS AGREEMENT AND DO NOT ACCESS THE SERVICES.
You will provide accurate, current and complete information (including about Customer and Customer’s users) in any registration or other Account related forms on the Omneky Platform accessed at www.omneky.com (the “Platform”) and agree to maintain the security of your username(s) and password(s). YOU UNDERSTAND THAT ANY PERSON WITH YOUR USERNAME(S) AND PASSWORD(S) MAY BE ABLE TO ACCESS YOUR ACCOUNT (INCLUDING CUSTOMER INFORMATION AND OTHER CUSTOMER DATA. YOU ACCEPT ALL RISKS OF UNAUTHORIZED ACCESS TO YOUR ACCOUNT BASED ON THE SHARING OR LOSS OF A USERNAME AND PASSWORD. You will promptly notify Omneky if you discover or otherwise suspect any security breaches related to your account or the Services, including any unauthorized use or disclosure of a username or password. Omneky may update this Agreement at any time and will notify you of such changes. By continuing to use the Services or accessing the Platform after the changes become effective, you agree to the new terms. If you do not agree to the new terms, you must cease your use of the Services and terminate this Agreement in the accordance with the terms below.
Omneky will provide the Services which correspond with the service level tier as described on Exhibit A (“Service Tier”) selected by Customer upon Account registration, which shall be the Starter Tier as set forth in Exhibit A unless otherwise indicated.. Customer may alter its selected Service Tier by providing written notice to Omneky. Changes in Service Tier will be reflected in Fees charged in the month following such Service Tier change.
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 to and to access the Services for its internal use only.
Subject to the terms and conditions of this Agreement, Omneky grants Customer a non-transferable, nonexclusive right, during the Term to use the Platform to and to access the Services for its internal use only.
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.
If applicable to Customer’s Service Tier, Omneky will provide 24/7 support and account management services throughout the duration of the Term.
If requested by Customer, and applicable to a Customer’s selected Services Tier, Omneky will provide campaign management services at the direction of Customer. Further details regarding the campaign management services may be set forth in Exhibit B to this Agreement or otherwise in writing between the Parties. Such services will be rendered through Customer’s own ad accounts to which Omneky will be provided access. Any such access credentials shall be considered Confidential Information of Customer. Omneky will not be liable for any third-party expenses incurred in rendering campaign management services for Customer.
Customer will be entitled to a one (1) week free trial (“Free Trial”) from the date of acceptance of this Agreement and/or access to the Services (the “Trial Period”). If you do not cancel this Agreement by providing written notice to Company within the Trial Period, then you will have been deemed to have accepted this Agreement in full and shall pay Company all applicable Fees (as defined below). You may only use the Free Trial once. Company reserves the right to withdraw or modify the Free Trial at any time within its sole discretion.
Customer will pay Company the then applicable fees for the selected Services Tier as described in Exhibit A (the “Fees.”) The Fees include a standard monthly (the “Subscription Fee”) and a percentage of monthly ad spend as set forth herein and/or in Exhibit A (the “Overage Percentage Fee”). The Monthly Subscription Fee shall be paid monthly. Unless otherwise agreed in writing between the Parties or selected by Customer during Account registration, the Starter Tier shall apply to Customer. The Overage Percentage Fee will be billed monthly through an invoice and will consist of a certain percentage of ad spend spent for the previous month after specified threshold amounts of ad spend, less actual refunds and credits (including the Subscription Fee, which functions as a base retainer). The Overage Percentage Fee percentages and thresholds vary depending on the Service Tier, and are set forth in Exhibit A. For clarity, the Subscription Fee shall function as a base retainer, and any overages in addition to the amount of such retainer shall be charged as part of the invoiced Overage Percentage Fee. 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 email@example.com.
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 termination 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.
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. Charges under this Agreement do not include and Customer will reimburse Omneky for all taxes including but not limited to sales, use gross receipts, and ad valorem taxes, duties or similar charges imposed on the Services or Work Product.
Subject to earlier termination as provided below, this Agreement is for one (1) year (the “Initial Term”), and shall be automatically renewed for additional periods of the same duration(collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term..
In addition to any other remedies it may have, either party may also terminate this Agreement, in the event the other party materially breaches the terms of this Agreement and fails to cure within thirty (30) days’ notice of such alleged material breach (or immediately in the case of nonpayment). Omneky may terminate this Agreement immediately without notice in the event of nonpayment.
Either Party may, in its sole discretion, terminate this Agreement at any time, without cause, by providing at least thirty (30) days’ prior written notice to the other Party. Where Customer voluntarily terminates this Agreement for any reason (except for cause as set forth in Section 3.2 above), Customer shall remain responsible for both the current month’s Monthly Subscription Fee, any other unpaid or outstanding invoices or other payment obligations in existence at the time of termination, and an amount equal to the total fee paid in the immediately preceding month (including both the Monthly Subscription Fee amount and the amount of ad spend spent during the immediately preceding month). Customer acknowledges that its payment obligations hereunder shall be due and payable within thirty (30) days of termination, and Customer is not entitled to any offset or pro-rated refund. Customer further acknowledges that its obligation to pay an amount equal to the total fee paid in the immediately preceding month (including both the Monthly Subscription Fee amount and the amount of ad spend spent during the immediately preceding month) reasonably approximates the harm Omneky suffers from early termination, and is not intended as a termination penalty. For the avoidance of doubt, in the event that Customer initially selected the yearly payment option, no refund of the Yearly Subscription Fee shall be allowed, and the fee due upon voluntary termination pursuant to this section shall be the amount of ad spend spent during the immediately preceding month.
Upon termination, Customer will pay in full for the Services up to and including the last day on which the Services are provided. Omneky will return or, at Customer’s election, destroy all Customer Materials in its possession. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification obligations and limitations of liability.
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”) Client hereby grants Omneky limited, revocable, royalty free, worldwide, non-sublicensable license to use, display, copy and reproduce all Client Materials solely as required to perform the Services during the Term. 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.
As between the parties, and excluding any Customer Materials, Omneky shall own all right, title and interest in and to all intellectual property and work product created, proposed, prepared, developed, produced, published or broadcast by or for Customer by Omneky under this Agreement, including without limitation any advertisements created by Omneky, reports, work, media plans, research, photographs, promotions, campaigns which are made, conceived, reduced to practice, created, written, designed or developed by or at the request of Omneky as a result of, or in connection with, the Services (collectively, the “Work Product”). Omneky hereby grants Customer the perpetual, exclusive, worldwide right and license to use, reproduce, publicly display, and publicly perform Work Product in all media, including but not limited, to social, display, TV and other channels, subject to any third party usage restrictions disclosed in writing to Customer by Omneky.
Any feedback, suggestions, testimonials, endorsements, information or materials conveyed to Omneky by You or Your users in connection with the Services shall be collectively deemed “Feedback.” You agree to grant and hereby grant to Omneky a non-exclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Feedback without restriction.
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.
Omneky may publicly identify Client in any public announcement, press release, promotional, or other material and may use any names, URLs, domain names, trademarks, service marks, logos, slogans or other words or phrases identifying Customer (“Customer Identifiers”) on its website and in any promotional or other materials including a published case study without Client’s express prior written consent (a “Omneky Marketing Use.”) In the event that Customer objects to any given Omneky Marketing Use of Customer Identifiers , Omneky will work in good faith with Customer to resolve its concerns and remove applicable Customer Identifiers if no alternative resolution is able to be reached.
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.
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; (f) its employees and agents will use best efforts to comply with all applicable policies and standards of the other Party related to the applicable Services; and (g). that the Customers Materials (in the case of Customer) or the Work Product (in the case of Omneky) do not infringe the intellectual property, publicity or other rights of any third party
EXCEPT AS SET FORTH IN THIS SECTION 7 (REPRESENTATIONS AND WARRANTIES), THE SERVICES AND THE DELIVERABLES 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, OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY A COURSE OF DEALING, USAGE OR TRADE PRACTICE OR COURSE OF PERFORMANCE
Customer shall indemnify, defend, and hold Omneky harmless from and against all liability, demands, claims, suits, causes of action, proceedings, costs, losses, damages, recoveries, settlements, assessments, fines, penalties, and expenses (including interest, attorney fees, accounting fees, expert fees) (“Claims”) arising from (a) any third party claim that Customer Materials infringe a third party’s intellectual property or publicity rights except to the extent such Claim is solely related to alterations of the Customer Materials made by Omneky without Customer’s prior approval or not at Customer’s direction, or (b) Customer’s breach of applicable law or regulation, gross negligence or willful misconduct.
Omneky shall indemnify, defend, and hold Client harmless from and against all Claims arising from (a) third party claims that Work Product or other materials created by Omneky in providing the Services infringe a third party’s intellectual property or publicity right. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Omneky, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Omneky to be infringing, Omneky may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
The indemnities in this Section 8 are contingent upon: (a) the indemnified Party promptly notifying the indemnifying Party in writing of any claim which may give rise to a claim for indemnification hereunder; (b) the indemnifying Party being allowed to control the defense and settlement of such claim; and (c) the indemnified Party cooperating with all reasonable requests of the indemnifying Party (at the indemnifying Party's expense) in defending or settling a claim. The indemnified Party 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. Neither Party shall make any settlement of any claims that may give rise to liability of the other Party hereto without the prior written consent of the other Party.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT LOSS, DAMAGE OR EXPENSE, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE. EXCEPT FOR CUSTOMERS’ OBLIGATION TO PAY THE FEES PURSUANT TO THIS AGREEMENT. EACH PARTY’S INDEMNIFICATION (AS TO THIRD PARTY CLAIMS), EACH PARTY’S MAXIMUM LIABILITY FOR DIRECT DAMAGES UNDER OR IN RELATION TO THIS AGREEMENT (REGARDLESS OF FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE) WILL BE LIMITED TO THE FEES PAID OR PAYABLE BY CLIENT TO OMNEKY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. IN NO EVENT SHALL OMNEKY BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY THIRD PARTY TECHNOLOGY.
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.
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.
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.
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.
This Agreement constitutes 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.
This Agreement and any claim or dispute arising out of, relating to or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to its conflicts of law principles.
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.
Unless otherwise agreed in writing between the Parties or selected by Customer during Account registration, the Monthly Subscription Fee (Monthly) option and the Starter Tier shall apply to Customer.
Up to $10k in monthly ad spend
3 New Ad Creatives Weekly
Design and Messaging Analytics
Biweekly Performance Report
AI Creative Generation
Creative Prediction and Suggestion
or 7.5% ad spend after exceeding $30k monthly ad spend
Everything in Starter
7 New Ad Creatives Weekly
Conversion Tracking Set Up
New Audience Discovery
Audience Targeting and Optimizations
Attribution Analytics Set up
1 Hr weekly Growth Consulting Session
Localized ads for up to 2 languages
24/7 Campaign Performance Monitoring
% media spend fee
Everything in Growth
10+ New Ad Creatives Weekly
Localized ads for up to 3 languages
Multi-Platform Attribution Set Up
Customer Community Development
Customer Life Cycle Tracking
Influencer Content Generation
Custom Performance Data and Reporting Solutions
Total Marketing Management (Google, Youtube, LinkedIn, Snapchat, Twitter, TikTok etc.)