THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER” AND “SUB LICENSEE”) AND AMERICAN TECHNOLOGY CORPORATION (“OMEGA ATC”), A MISSOURI CORPORATION WITH ITS PRINCIPAL OFFICE AT 17263 WILD HORSE CREEK ROAD, CHESTERFIELD, MISSOURI, 63005. THIS AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF OMEGA ATC PRODUCTS AND SERVICES. CUSTOMER IS RESPONSIBLE FOR COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT BY AGENTS AND END USERS AND FOR ANY AND ALL ACTIVITIES THAT OCCUR UNDER CUSTOMER’S ACCOUNT.
This Agreement was last updated on March 10, 2023. It is effective between Customer and Omega ATC as of the date of Customer’s accepting this Agreement. In consideration of the mutual promises and conditions specified in this Agreement, the parties hereby agree as follows:
“Agreement” means this Master Services Agreement governing Customer terms of use of Omega ATC Products and Services.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity which have entered into Order forms with Omega ATC or its Resellers and has use of a Product or Service. Customer(s) may also be referred to in certain Product Terms of Use or Online Portals as End User, Account Owner, Network Owner, Client, or Content Owner.
“Order Form” means an ordering document or online order specifying the Products and Services to be provided hereunder that is entered into between Customer and Omega ATC or any Reseller.
“Products” includes hardware and/or software it has developed or licensed from others.
“Reseller” means any entity authorized to sell Omega ATC Products and Services, using authorized ordering documents, online order forms, and any addenda and supplements thereto. By entering into an Order Form with a Reseller, Customer agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Services” means the services provided by Omega ATC to Customer under this Agreement. Services shall include Maintenance Services, Subscription Services, Professional Services as applicable, including managed services covering data and systems security, network security, network availability, compliance with applicable security requirements, and analysis and reporting of systems needs and remediation based on the identification of security weaknesses and deficiencies.
The initial term (the “Initial Term”) of this Agreement shall be for a period of three (3) calendar years from the date Services commence under this Agreement (“Effective Date”). The Agreement shall renew automatically on the same terms and conditions as the Initial Term for additional one (1) year terms (“Renewal Terms”), unless either party gives the other at least sixty (60) days’ written notice of its intention not to renew on the anniversary of the Effective Date. Moreover, either party may provide written notice to the other at least sixty (60) days prior to the anniversary of the Effective Date that the Agreement needs to be reviewed and modified and the parties hereby agree to negotiate any desired modifications to any terms and conditions, including Fees, within the sixty (60) window, to preserve the right of either party to give timely notice of termination. This Agreement, including the prices quoted, shall be non-cancellable for a period of (3) calendar years (36-months); if Customer sells its business or business assets, such sale shall be subject to this Agreement for the period remaining on the initial Term or any renewal Term and Customer shall be required to adhere to the provisions set forth in Section 12.1.1 of the Agreement.
Either party shall have the right to terminate this Agreement in the event that:
Upon expiration or earlier termination of this Agreement, Omega ATC shall promptly discontinue provision of all Services. However, if Customer desires to pay the Transfer Fee, Omega ATC shall work with Customer to arrange for transfer of all currently logged data to another service provider. The parties hereby agree that a final payment of all Fees owed shall be made by Customer in accordance with Paragraph 4.
It is hereby understood by both parties that all payment obligations and all other rights, restrictions, disclaimers and enforcement rights of the Omega ATC related to the Sublicense of Products shall survive such termination and shall be enforceable by Omega ATC against the Sublicensee.
Services provided by Omega ATC under its Base Agreement do not include any of the following:
After the Effective Date of this Agreement, Customer shall be allowed to add additional services to the Base Services, upon acceptance by Omega ATC and upon execution of an applicable Order Form, covering all such additional services and associated fees for such services, effective for the terms of this contract.
In order for Omega ATC’s Services and Products to operate on Customer’s technology platform, Customer must provide a suitable environment by meeting the following operational requirements:
If Customer elects to execute this Agreement prior to achieving all of these minimum conditions, the Effective Date remains the date of execution, regardless of how long it takes Customer to comply with these minimum conditions. As set forth in paragraph 2(B)(i), Customer shall bear all costs associated with bringing its environment up to meet these minimum conditions, although Customer may choose to contract with Omega ATC to bring its environment up to minimum standards.
Customer shall designate a contact person to be its Administrator, who possesses appropriate technical knowledge, to work with Omega ATC in ensuring that it can coordinate delivery of its Services in the most efficient and effective manner. All communications with Omega ATC shall be handled only by the Customer Administrator, in order to facilitate efficient handling of problems; in the event of any problem with the Services and Products, the Administrator is to initiate an email, or telephone call if email is unavailable, to open a “trouble ticket” with Omega ATC. Each trouble ticket shall be assigned a unique tracking number to ensure its timely resolution. Until Customer designates its Administrator, Omega ATC shall have the right to provide Services and Products in a commercially reasonable manner.
The Parties to this Agreement hereby acknowledge and agree that the Omega ATC Services and Products, including all software and documentation, as well as any marks associated with the name or identity of its Services and Products, are and at all times shall remain the sole proprietary rights and/or intellectual property of Omega ATC and/or its Licensor(s), and that nothing in this Agreement shall convey to Sublicensee any right of ownership. Sublicensee shall not, now or in the future, contest the validity of any intellectual property rights held by Omega ATC and/or its Licensor(s) and shall not take any action that would impair the value of, or goodwill associated with, Omega ATC’s name, identity, marks, or intellectual property.
Customer hereby acknowledges that the structure, organization and Code of Products are trade secrets of Omega ATC and its Licensor(s). As such, Customer agrees to treat all information it obtains from Omega ATC about its Products, and the Services using those Products, in accordance with the provisions of Paragraph 9.
Omega ATC hereby grants, for the period of this Agreement, a non-exclusive sublicense to Customer to cover the use of its Products, and any other materials and/or reports that are part of the Omega ATC Services, in order to meet the obligations set forth in Paragraph 3. All such rights granted to Customer in this Agreement shall be co-extensive with the rights granted to Omega ATC under the same terms as exist with it Licensor(s), as those rights exist as of the date of this Agreement, and as they may be modified in the future by changes to any such License.
Customer/Sublicensee shall have the authority to employ or designate individuals as its agents or contractors in the use of this Sublicense; however, Sublicensee shall have the full responsibility to ensure that all employees, agents, contractors or other third parties using this Sublicense comply with the terms of this Agreement, including all restriction of use set forth in Paragraph 7 herein. Sublicensee shall be solely liable for any and all violations of the Sublicense, including any prohibition against re-importation of the Products into the United States.
Customer/Sublicensee shall not be permitted to make digital copies of any Product. This Agreement expressly does not convey a right for the Sublicensee to receive the Source Code or other documentation or information used in creating, developing, or implementing the Product or Services using those Products that are part of the Omega ATC system.
Omega ATC hereby represents and warrants that none of its Products infringe upon or violate any intellectual property rights (whether conferred by statute, code, common law, or otherwise) held by any Customer, and that Omega ATC possesses all necessary rights and authority to use any Products owned by its Licensor(s).
Omega ATC hereby warrants that the Products will perform accurately and function in all manner and respect as they are intended to function for the purpose of providing various Services as described in applicable Order Forms.
THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, MADE BY OMEGA ATC FOR ITSELF AND ITS LICENSOR(S). EXCEPT AS SET FORTH ABOVE, OMEGA ATC PRODUCTS AND RELATED SERVICES, INCLUDING ALL SCANNING SERVICES AND REPORTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. OMEGA ATC MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE ACCURACY, PERFORMANCE, OR FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THE OMEGA ATC PRODUCTS. FURTHERMORE, WITHOUT LIMITATION, OMEGA ATC DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING CUSTOMER’S USE OR THE RESULTS OF THE USE OF THE OMEGA ATC PRODUCTS AND SERVICES IN TERMS OF ACCURACY AND RELIABILITY.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OMEGA ATC SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION MAY NOT APPLY.
In using the Products and Services under this Agreement, Customer agrees that it shall:
Customer agrees to indemnify, release and hold harmless Omega ATC, its officers, agents, and representatives, against any claim, demand, suit, damages, or judgment, including reasonable attorneys’ fees, costs and expenses incurred, arising, or alleged to have arisen out of the use of the Omega ATC Services and Products, or which may be sustained or suffered by or secured against or imposed on the Customer by reason of breach of any of its obligations under this Agreement, as set forth in Paragraph 3.
Customer assumes all risk and liability for any adverse consequences to its systems resulting from the use of Omega ATC’s Services and Products, including but not limited to any of the following results:
The rights and remedies of the parties to this Agreement shall not be mutually exclusive, i.e., the exercise of one or more of the provisions shall not preclude the exercise of any other provisions. Customer hereby acknowledges that damages at law may be an inadequate remedy for Omega ATC for a breach or threatened breach of the Intellectual Property provisions of this Agreement and agrees that, in the event of a breach or threatened breach of any Omega ATC Intellectual Property rights, those rights and obligations hereunder shall be enforceable by specific performance, injunction or other equitable remedy, but nothing in this Agreement is intended to, nor shall it, limit or affect any rights at law or by statute or otherwise of any party aggrieved by a breach or threatened breach of any provision of this Agreement.
No consent or waiver, express or implied, by a party to or of any breach or default by another party in the performance by such other party of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other party of the same or any other obligations of such other party hereunder. Failure on the part of a party to complain of any act or failure to act of another party or to declare another party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder. The giving of consent by a party in any one instance shall not limit or waive the necessity to obtain such party’s consent in any future instance.
IN NO EVENT SHALL OMEGA ATC BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS DATA OR OTHER PECUNIARY OR NON- PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE OMEGA ATC’S PRODUCTS AND/OR SERVICERS, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OMEGA ATC’S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE ANNUAL SERVICE FEES PAID BY CUSTOMER/SUB-LICENSEE IN THE YEAR FOR WHICH A CLAIM IS MADE.
BECAUSE SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
INASMUCH AS OMEGA ATC DOES NOT ACTUALLY HANDLE, STORE OR PROCESS ANY OF CUSTOMER’S FINANCIAL TRANSACTIONAL DATA, OMEGA ATC IS THEREFORE NOT A “SERVICE PROVIDER” UNDER THE PCI DATA SECURITY STANDARDS, AND ACT THUS DISCLAIMS ANY LIABLE FOR DAMAGES, FINES, AND/OR PENALTIES THAT MAY BE IMPOSED ON CUSTOMER BY ANY CARD BRAND, OR ITS CARD PROCESSOR, OR BY ANY STATE OR FEDERAL GOVERNMENT, FOR ANY BREACH OF PCI DATA SECURITY STANDARDS BY CUSTOMER, ITS EMPLOYEES AND AGENTS, OR ITS SERVICE PROVIDERS.
In the course of performing its responsibilities under this Agreement, each party (“Recipient”) or its employees may be exposed to or acquire Confidential Information of the other party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality. “Confidential Information” means nonpublic information that the Discloser designates as being confidential to Recipient or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Recipient. "Confidential Information" includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Discloser products, the marketing or promotion of any Discloser product, Discloser’s business policies or practices, and information received from others that Discloser is obligated to treat as confidential. Recipient agrees to hold Confidential Information in strict confidence and not to copy, or disclose the information to third parties, or use the information for any purpose not contemplated by this Agreement and to advise each of its employees who may be exposed to Confidential Information of their obligations to keep that information confidential. Recipient shall use at least the same degree of care in handling Discloser's Confidential Information as it uses with regard to its own confidential information, but no less than a reasonable standard of care.
Confidential Information may be disclosed:
Confidential Information shall not include information that is:
Upon termination of this Agreement (or earlier at the request of Discloser), Recipient shall promptly return or destroy all Confidential Information and any copies of documents, papers or other material which may contain or be derived from any Confidential Information that is in its possession. At Discloser's request, Recipient shall certify that it has satisfied its obligations under this Section 6.3.
Omega ATC reserves the right, in its sole discretion, to suspend operation of this Agreement and/or terminate this Agreement and its obligations there under, if it is hampered in the performance of its rights or obligations under this Agreement, or its normal business operations are delayed, postponed, or become commercially impractical to continue because of any of the following events: Act of God, fire, natural catastrophe, labor disagreements, acts of government, or for any similar reason beyond Omega ATC’s control.
The Parties agree that any disputes between them, except for all disputes regarding the payment of Fees, shall be submitted promptly for binding resolution in St. Louis, Missouri, in accordance with the Commercial Rules of the American Arbitration Association, except that the arbitration shall be conducted by a single arbitrator, mutually agreed upon by Omega ATC and Customer. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The arbitrators shall award all costs of the arbitration, including attorneys’ fees, in accordance with what the arbitrator deems to be just and equitable under the circumstances.
All disputes arising under this Agreement, including any claims regarding the payment of Fees, and the rights and liabilities of the parties hereto shall be governed by the laws of the United States of America and the State of Missouri. Regardless of the choice of law and venue provisions contained in the rules and laws of the United States of America, the state of Missouri or any other jurisdiction, jurisdiction and venue for any actions related to this Agreement shall be in the federal and state courts located in St. Louis County, Missouri, and the parties irrevocably consent to personal jurisdiction and venue therein.
All notices, requests, demands and other communications to be given under this Agreement shall be made in writing and shall be deemed to have been duly given on the date of personal service or on the first day after mailing by certified or registered mail or sent by facsimile addressed to contacts specified in Exhibit A, or at such other address as either party may indicate by written change.
If Customer sells its business or any business assets which are the subject of the Services provided under this Agreement (e.g., specific retail locations) to a third party within the 36-month initial term, or during any renewal term, such a sale must be subject to, and governed by, this Agreement. Customer is required to explain this Agreement, including this sale restriction, to any third party in the contract before the sale of the business or any business assets occurs. The Agreement shall remain in effect and govern the new third party, who shall assume the remainder of then-current term, including the balance of the non-termination period.
Except as provided in subsection 12.1.1, Customer/Sublicensee shall not assign, in whole or in part, the benefits of this Agreement, or any rights or obligations thereunder, without the prior written consent of Omega ATC. Any attempt to assign this Agreement without the consent of Omega ATC shall be null and void. Consent shall not be given if the proposed Assignee is a related corporation or associated party to the Assignor, including by any form of common ownership, directorship, or shareholding. In making such approval, Omega ATC shall consider whether the proposed assignee meets the following criteria:
Notwithstanding any language in Section 12.1, if a Customer sells its business or any business assets which are the subject of the Services provided under this Agreement to a third party within the 36-month initial term, or any renewal term, such a sale shall be subject to, and governed by, this Agreement. The original Agreement shall remain in effect and govern the new third party, who shall assume the remainder of then-current term, including the balance of the non-termination period of 36-months. Customer is required to explain this agreement to any third party that assumes responsibilities under the contract before the sale of the business or any business assets.
Omega ATC shall have the right to assign this Agreement or any of its rights or obligations to an affiliated entity or subsidiary, provided that such assignment shall not alter the financial arrangements or basic duties and obligations of Customer/Sublicensee under this Agreement.
This Agreement represents the entire agreement between the parties, and supersedes all proposals, negotiations, and agreements between the parties, whether written or verbal, and shall not be modified except in writing and upon the execution by the parties hereto. No party hereto shall be bound by nor charged with any oral or written agreements, representations, warranties, statements, promises or understandings not specifically set forth in this Agreement.
In the event that any provision of this Agreement shall be declared to be invalid, illegal, or incapable of enforcement by any court of competent jurisdiction, such determination shall not render any other provision invalid, and the balance of the Agreement shall continue in full force and effect and shall be binding on the parties hereto.
Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties signatory hereto and their permitted beneficiaries, successors and assignees. Furthermore, the parties acknowledge and agree that this Agreement is not intended to create any rights or obligations for or to any third parties, either as Customer beneficiaries or otherwise.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same agreement. Facsimile signatures shall be given the same force and effect as original signatures for the purpose of this Agreement.
