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End User Terms and Conditions

THESE TERMS AND CONDITIONS APPLY TO THE PROVISION OF PRODUCTS BY FAIRFIELD OPCO, LLC dba OBJECTIVE MANAGEMENT GROUP ("OMG") AND EXCLUSIVELY GOVERN THE LEGAL RELATIONSHIP BETWEEN YOU (THE "CUSTOMER") AND OMG (THE "AGREEMENT").

IMPORTANT, READ CAREFULLY: YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES OR THE PLATFORM.

OMG RESERVES THE RIGHT TO MODIFY THIS AGREEMENT UPON 60 DAYS’ PRIOR NOTICE TO ITS RESELLERS. YOUR USE OF THE PLATFORM FOLLOWING SUCH DATE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THE AGREEMENT AS MODIFIED. NOTWITHSTANDING THE FOREGOING, THE RIGHT TO MODIFY THIS AGREEMENT SHALL NOT INCLUDE THE AGREEMENT TO ARBITRATE SET FORTH IN SECTION 9. NO PART OF THE AGREEMENT TO ARBITRATE MAY BE AMENDED, DISCHARGED, MODIFIED, OR WAIVED EXCEPT IN A WRITING SIGNED BY BOTH PARTIES.

In consideration of the mutual benefits and commitments set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, OMG and Customer hereby agree as follows:

1. Definitions.

"Administrator" means one or more Authorized Users authorized by the Customer to configure and manage access settings for Authorized Users to use the Platform.

"Assessment" means an online test for Candidates evaluating specific competencies associated with top-performing sales professionals.

"Authorized User" means any one of Customer’s employees, consultants, contractors, agents, and Candidates who Customer authorizes to access and use the Platform under the rights granted to Customer pursuant to this Agreement.

"Candidate" refers to an individual identified by Customer as a potential sales team hire.

"Documentation" means OMG’s user manuals, handbooks, and guides relating to the Products that may be provided by Reseller to Customer either electronically or in hard copy form.

"Personal Information" means information that: (i) identifies or can be used to identify an individual (including, without limitation, names, addresses, telephone numbers, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, passwords or PINs, user identification and account access credentials or passwords, answers to security questions, and other personal identifiers); or (iii) is otherwise considered "personal information" or "personal data" as those terms are defined under U.S. privacy laws.

"OMG IP" means the Platform, as defined in Section 2.1, the Documentation, and the Assessments, and any and all intellectual property incorporated therein. To avoid doubt, OMG IP does not include Customer Data, as defined in Section 5.2.

"Platform" means an Internet-enabled platform that facilitates access to the Assessments and reporting based upon such Assessments which has been developed and is owned and marketed by OMG.

"Product" means OMG’s Platform, Documentation and Assessments.

"Reseller" means a business entity to which OMG has granted the right to sell its Products to end users including Customer.

"Results" means (a) the recommendations and other data and information available through the Platform that relate to a particular Candidate that completes an Assessment; or (b) in the case of Sales Team Assessment Services Performed by OMG, that relates to one or more Customer sales team members.

2. PRODUCTS.

  • 2.1. Products. OMG will make the Products available to Customer, either directly or through a Reseller.
  • 2.2. Access to and use of the Products. Subject to Customer’s compliance with the terms of this Agreement, OMG hereby grants to Customer a limited, nonexclusive, non-sublicensable, nontransferable license to access the Products during the Term solely for Customer’s internal use. Notwithstanding the foregoing, OMG acknowledges and agrees that Customer may retain and refer to Results after the expiration of the Term, as required by applicable law. Customer is responsible for obtaining and maintaining all of the appliances, hardware, software, and services that Customer may need to access and use the Platform, as defined in Section 3.1. Without limiting the foregoing, Customer must obtain, maintain, and pay all charges, taxes, and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Customer to access and use the Platform.
  • 2.3. Documentation. OMG hereby grants Customer and its Authorized Users a limited, nonexclusive, nontransferable, non-sublicensable right to access, use, make a reasonable number of copies of, and display the Documentation during the Term solely in connection with the licenses granted in Section 2.2 above.
  • 2.4. Support Services. OMG may, but is under no obligation to, perform any error correction or other technical support services, provided that the Products substantially comply with their description in the applicable Documentation.
  • 2.5. Monitoring and Statistical Information. Customer acknowledges that OMG may collect data about Customer’s and Authorized Users’ use of the Products and aggregate and deidentify associated Customer Data (collectively "Usage Data"). Customer grants to OMG a non-exclusive, irrevocable, royalty-free, worldwide license, with right to sublicense, to use, analyze, copy, make, sell, modify and enhance Usage Data to improve the Products and for other lawful purposes.

3. CUSTOMER OBLIGATIONS

  • 3.1. The following limitations and restrictions will apply to Customer’s access to and use of the Products:
    • (a) Assessments may only be taken by Candidates. Customer may not use the Platform to perform Assessments of Authorized Users, other Customer personnel, or any third party.
    • (b) Customer will not provide access to the Products, Assessments, Documentation, or Results to anyone other than an Authorized User;
    • (c) Except as expressly permitted hereunder, Customer will not and will not permit or authorize any Authorized User or third party to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithms of the Products, including Assessments; (ii) modify, translate, or create derivative works based on the Products, including the Assessments, or the Documentation, or any portion thereof; (iii) copy (except as permitted in Section 2.3), rent, lease, distribute, pledge, assign, or otherwise transfer or allow any lien, security interest, or other encumbrance on the Platform, or the Documentation; (iv) use the Platform or the Documentation for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) hack, manipulate, interfere with, or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Products or related systems, hardware, or networks, the Platform, or any content or technology incorporated in any of the foregoing; or (vi) remove, obscure, or alter any proprietary notices or labels of OMG, its licensors, or other service providers on the Platform or the Documentation.
    • (d) Customer will not and will not permit or authorize any Authorized User or third party to use the Platform in a manner that violates the Acceptable Use Policy applicable to Microsoft® Online Services, as it may be updated from time to time.
    • (e) Customer will and will require its Authorized Users at all times to use the Platform strictly in accordance with the terms of this Agreement and the Documentation.
  • 3.2. Reseller Agreements. In addition to this Agreement, you may have entered into a separate agreement with a Reseller. In the event of any conflict between your agreement with a Reseller and the terms of this Agreement, the terms of this Agreement shall apply with respect to the subject matter hereof. All fees for the Products and any related services provided by the Reseller are due and payable to the Reseller.
  • 3.3. Reseller Responsibilities. Reseller is solely responsible for setting the prices for the Products, for invoicing and collecting all amounts due from Customer for the Products, and for delivering any Reseller support services to Customer. Under no circumstances is OMG responsible for: (i) the action or inaction of any Reseller, including but not limited to negligence, misconduct, or failure to comply with applicable laws, (ii) any Reseller support services or other products or services made available to Customer by Reseller, or (iii) any additional obligations Reseller has to Customer under any agreement between Customer and Reseller.
  • 3.4. Account Security. Customer is responsible for ensuring that: (a) each Authorized User maintains the confidentiality of the password and username that the Authorized User uses to access the Platform; and (b) that the Administrator actively manages access to the Platform, including by promptly removing access credentials for Authorized Users who no longer require access to the Platform. Reseller is not responsible for unexpected or unauthorized use of the Platform on behalf of Customer, whether by ex-employees, compromised user passwords, or any other misuse of Customer account information. Customer agrees to immediately notify Reseller of any unauthorized uses of passwords or accounts or any other breach of security with respect to the Platform of which it becomes aware. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall and shall cause its Administrator to immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Platform and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Reseller of any such actual or threatened activity. Reseller will not be liable for any loss or damage arising from Customer’s failure to comply with Customer’s obligations set forth in this Section 3.4.

4. CONFIDENTIALITY.

  • 4.1. Confidential Information. In connection with this Agreement, each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 4.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential," provided that the Receiving Party knew, or reasonably should have known, such information was the Confidential Information of the Disclosing Party.
  • 4.2. Exclusions. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
  • 4.3. Confidentiality Obligations. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall, during the Term and for a period of five (5) years after expiration or termination of this Agreement:
    • 4.3.1. not access or use, or permit the access or use of, Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
    • 4.3.2. not use or permit the use of any of the Disclosing Party’s Confidential Information, directly or indirectly, in any manner to the detriment of the Disclosing Party or to obtain any competitive advantage over the Disclosing Party;
    • 4.3.3. except as may be permitted by and subject to its compliance with Section 4.4, not disclose or permit access to Confidential Information other than to its employees who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this section; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this section;
    • 4.3.4. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own sensitive information and in no event less than a reasonable degree of care;
    • 4.3.5. ensure that its employees comply with the terms of this Section 5 and be responsible and liable for any employee’s noncompliance with the terms of this Section 5; and
    • 4.3.6. notify the Disclosing Party in writing immediately of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information and cooperate with the Disclosing Party to protect the confidentiality and ownership of all Intellectual Property Rights, privacy rights, and other rights therein.
  • 4.4. Compelled Disclosures. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, or to establish a party’s rights under this Agreement, including to make required court filings. If the Receiving Party is compelled by applicable law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under Section 6.3; and (ii) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this section, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
  • 4.5. Return or Destruction. Upon the Disclosing Party’s written request, subject to any contrary obligations under applicable law, the Receiving Party shall promptly: (i) return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information; or (ii) destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the Receiving Party shall not be required to destroy copies of the Disclosing Party’s Confidential Information stored on backup disks or systems that are automatically produced in the ordinary course of business and which are not accessible from employee workstations. Any copies so retained shall remain subject to all confidentiality obligations herein.

5. INTELLECTUAL PROPERTY RIGHTS.

  • 5.1. OMG IP. Customer acknowledges that OMG owns all right, title, and interest, including all intellectual property rights, in and to the Products and the OMG IP.
  • 5.2. Customer Data. OMG acknowledges that, except for the licenses granted herein, as between OMG and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the hiring and employee performance data and Assessment responses provided by a Candidate ("Customer Data"). Customer hereby grants to OMG a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and use and display the Customer Data to the extent necessary for OMG to provide the Services and enforce the terms of this Agreement and as otherwise set forth in Section 2.5.
  • 5.3. Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality, or other feedback ("Feedback") to Reseller or OMG with respect to the Services or the Platform. OMG will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features, or functionality. Customer hereby grants Reseller and OMG a perpetual, irrevocable, worldwide, royalty-free, fully paid up, transferable, sublicensable license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide, and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

6. WARRANTIES AND WARRANTY DISCLAIMER.

  • 6.1. Mutual Warranties. Each party represents and warrants to the other party that:
    • (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
    • (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
    • (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
    • (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
  • 6.2. Additional OMG Warranties. OMG represents and warrants to Customer during the Term that OMG’s sole and exclusive liability, and Customer agrees that Customer's sole and exclusive remedy, for breach of the foregoing warranties shall be as follows:
    • i. OMG shall use reasonable commercial efforts to cure any such breach promptly; provided, that if OMG cannot cure such breach within a reasonable time after Customer's written notice of such breach, Customer may, at its option, terminate this Agreement by serving written notice of termination.
    • ii. In the event the Agreement is terminated pursuant to subsection (i) above, OMG shall cause Reseller to within thirty (30) days after the effective date of termination, refund to Customer any fees paid by the Customer for the Products that are the subject of such breach, less a deduction equal to the fees for receipt or use of such Products up to and including the date of termination on a pro-rated basis.
    • iii. The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) days after delivery of the Products to Customer.
  • 6.3. Additional Customer Warranties. Customer represents and warrants to OMG during the Term that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law.
  • 6.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 6.1 AND SECTION 6.2, ALL PRODUCTS ARE PROVIDED "AS IS." OMG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, OMG MAKES NO WARRANTY OF ANY KIND THAT ANY PRODUCTS OR RESULTS WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

7. LIMITATION OF LIABILITY.

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO OMG FOR THE SERVICE TERM DURING WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.

8. TERM AND TERMINATION.

  • 8.1. Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the end of the Term (the "Initial Term"). This Agreement will automatically renew for additional successive twelve (12) month terms (each a "Renewal Term" and together with the Initial Term, the "Term") until either party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term, or the Agreement is terminated earlier pursuant to this Agreement’s express provisions.
  • 8.2. Termination. In addition to any other express termination right set forth in this Agreement:
    • (a) OMG may terminate this Agreement for convenience, for any reason or no reason, upon ninety (90) days’ prior written notice to Customer.
    • (b) Either party may terminate this Agreement by written notice to the other party if: (i) the other party materially breaches this Agreement; and (ii) such breach is not cured within thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach (the "Cure Period"). If a party terminates the Agreement pursuant to this Section 8.2(b), the effective date of termination will be the last day of the Cure Period.
    • (c) OMG may terminate this Agreement effective immediately on written notice if, in its sole judgment, Customer is in breach of Section 3.2 or is exceeding the usage limitations set forth in Customer’s order for the Products.
    • (d) Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  • 8.3. Effect of Termination. Upon expiration or termination of this Agreement, Customer shall immediately discontinue use of the Products and delete all copies of the Documentation. In the event the Agreement is terminated for convenience by OMG pursuant to Section 8.2(a), or by Customer pursuant to Section 8.2(b), OMG will cause Reseller to refund Customer any pre-paid Fees for the then-current Initial Term or Renewal Term, pro-rated through the termination date if applicable. Reseller shall have no obligation to refund any Fees in the event of termination by OMG pursuant to Section 6.3, 8.2(b), 8.2(c), or 8.2(d).
  • 8.4. Survival. Sections 2.5, 4, 5, 6, 7, 8, and 9.6 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement will survive the expiration or earlier termination of this Agreement.

9. MISCELLANEOUS.

  • 9.1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  • 9.2. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
  • 9.3. Notice. Unless otherwise set forth herein, all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section 9.3). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only upon receipt by the receiving party, provided that the party giving the Notice has complied with the requirements of this Section 9.3.
  • 9.4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement: (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  • 9.5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner.
  • 9.6. Governing Law; Dispute Resolution.
    • (a) Governing Law. This Agreement is governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to any choice or conflict of law provisions.
    • (b) Escalation Process. If the parties cannot resolve any dispute in any way arising from or relating to this Agreement, including any Order Form (each a "Dispute"), by mutual agreement, then either party shall be entitled to escalate the matter to the appropriate executive management level within each party’s organization to resolve such Dispute. Executive management of each Party will use commercially reasonable efforts to resolve the Dispute within ten (10) calendar days of escalation.
    • (c) Arbitration. If a Dispute is not resolved to the satisfaction of both parties in accordance with Section 9.6(b), within thirty (30) calendar days from the date of escalation, the parties will submit such Dispute to arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered may be entered in any court of competent jurisdiction. Claims shall be heard by a single arbitrator. The arbitrator shall have experience with software-as-a-service and distribution channel agreements. Time is of the essence for any arbitration under this agreement, and arbitration hearings shall take place within ninety (90) days of filing and awards rendered within one hundred twenty (120) days. The arbitrator shall agree to these limits before accepting an appointment. Pursuant to the Commercial Arbitration Rules, the arbitrator will have the authority to allocate the costs of the arbitration process among the parties but will only have the authority to allocate attorneys' fees if a particular law permits them to do so. Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. Notwithstanding the foregoing, Customer reserves the right to seek injunctive relief in any court of competent jurisdiction.
  • 9.7. Assignment. Neither party may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that OMG may assign its rights or delegate its obligations, in whole or in part, without such consent, to: (i) an affiliate; or (iii) an entity that acquires all or substantially all of the business or assets of OMG to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment or delegation in violation of this Section 9.7 will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
  • 9.8. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, and all of which together are deemed to be one and the same agreement.

Rev. Nov. 2025