BayTracker Terms of Use

This Agreement applies to your use of the Service Offerings and Software. You (“Customer”) may access and use the Service Offerings and Software during the term of the Master Agreement in accordance with the terms of this Agreement and the Master Agreement.

1. Software License Grant and Restrictions.

1.1. License Grant. Subject to the terms and conditions of this Agreement and the Master Agreement, during the term of this Agreement Omnibond hereby grants Customer a non-exclusive, non-transferable limited license to access and use, and to allow End Users to access and use, the object code version of the Software and Services Offerings solely for purposes of Customer’s or End User’s own internal uses and operations. This license applies only to Customer and End Users as expressly provided herein and does not allow access to, use of or resale or distribution of, the Software or Service Offerings for any purposes not expressly stated herein by any affiliated entities or organizations, or any other entity, unless approved in advance by Omnibond in writing.

1.2. License Restrictions. Customer shall not, and Customer shall not permit any End User or other third party to: (a) copy, sell, resell, rent, lease, loan, license, sub-license, distribute or otherwise provide the Software or Services to any third party; (b) reverse engineer, decompile or disassemble the Software or Services, or apply any other process or procedure to derive the source code of the Software except to the extent the foregoing restriction is expressly prohibited by applicable law; (c) modify, alter, tamper with, repair, create derivative works of or otherwise access the Software or Services; (d) use the Software or Services for any purpose other than expressly permitted under the Master Agreement or this Agreement without Omnibond’s prior written consent; or (d) copy or distribute the Software without Omnibond’s prior written consent. Customer represents and warrants that Customer will comply with all Policies, and all applicable laws, rules, and regulations applicable to Customer’s use of the Software and Services. Customer may only use the Omnibond Marks in accordance with the Trademark Use Guidelines.

2. Customer’s Use of the Service Offerings

2.1. Customer’s Use of the Service. When Customer uses this Service, Customer represents and warrants that: (a) the information Customer and End Users submit is truthful and accurate; (b) Customer’s and End Users’ use of this Service does not violate any Policy or any applicable law, rule. policy or regulation; (c) Customer and each End User is 18 years of age or older; (d) Customer has obtained all consents and permissions and posted all notices required under all applicable laws, rules and regulations (including privacy and data security laws) to provide Omnibond with Content for the Service; (e) Customer has since the Effective Date and will at all times during the term of this Agreement and the Master Agreement have accurate and legally sufficient privacy and data security policies which include Customer’s use of the Service Offerings; (f) Customer will comply with all Policies, and all applicable laws, rules, and regulations applicable to Customer’s use of the Service Offerings, including without limitation the rules for using the Service Offerings (as described in Section 2.2 below); and (g) Customer will not access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas.

2.2. Use Guidelines. Customer may submit Content to Omnibond so that Omnibond may make the Service available to Customer. Customer is entirely responsible for the content of, and any harm resulting from, any Content Customer provides to Omnibond. When Customer creates or make available Content, Customer represents and warrants that Customer:

2.2.1. owns or has sufficient rights to submit Customer’s Content, on or through the Service Offerings, and shall only provide content that is accurate and complete;

2.2.2. will not submit Content that violates Omnibond’s or any other person’s privacy rights, publicity rights, intellectual property rights (including without limitation copyrights) or contract rights, and all applicable Policies, laws, rules, and regulations;

2.2.3. will not submit Content that: (i) is defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable; or (ii) incites, encourages or threatens immediate physical harm against another, including but not limited to, Contents that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual;

2.2.4. will not use the Service Offerings for any commercial purpose, business-related or unauthorized purpose;

2.2.5. will not interfere with, disrupt, or create an undue burden on the Service Offerings or the networks or services connected to the Service Offerings, including without limitation, hacking into the Service Offerings, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;

2.2.6. will not impersonate any other person or entity, sell or let others use Customer’s profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;

2.2.7. will not circumvent or disable any content protection system or digital rights management technology used with the Service Offerings; decompile, reverse engineer, disassemble or otherwise reduce the Service Offerings to a human-readable form; remove identification, copyright or other proprietary notices; or access or use the Service Offerings in an unlawful or unauthorized manner or in a manner that suggests an association with Omnibond’s products, services or brands; and

2.2.8. will not use the Service Offerings in violation of United States export control and economic sanctions requirements set forth at http://www.bis.doc.gov/index.php/exporter-portal.

2.3. Customer’s Content. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer’s Content. For example, Customer is solely responsible for: (a) the technical operation of Customer’s Content, including ensuring that calls Customer makes to any Service Offerings are compatible with then-current APIs for the Service Offering; (b) any claims relating to Customer’s Content; and (c) properly handling and processing notices sent to Customer (or any of Customer’s affiliates) by any person claiming that Customer’s Content violate such person’s rights.

2.4. Security and Backup. Customer is responsible for properly configuring and using the Service Offerings and taking Customer’s own steps to maintain appropriate security, protection and backup of Customer’s Content, which may include the use of encryption technology to protect Customer’s Content from unauthorized access. Log-in credentials and private keys generated by the Services are for Customer’s internal use only and Customer shall not sell, transfer or sublicense them to any other entity or person, except that Customer may disclose Customer’s private key to Customer’s agents and subcontractors performing work on Customer’s behalf, provided that Customer is responsible for their acts or omissions.

2.5. End User Violations. Customer will be deemed to have taken any action that Customer permits, assists or facilitates any person, End User or entity to take related to this Agreement, Customer’s Content or use of the Service Offerings. Customer is responsible for End Users’ use of Customer’s Content and the Service Offerings. Customer will ensure that all End Users comply with Customer’s obligations under this Agreement and that the terms of Customer’s agreement with each End User are consistent with this Agreement. If Customer becomes aware of any violation of Customer’s obligations under this Agreement by any End User, Customer will immediately terminate such End User’s access to Customer’s Content and the Service Offerings, cease all use of the Software, Services and Service Offerings by or on behalf of such End User, and cease providing any Services or Service Offerings to such End User.

2.6. End User Support. Customer is responsible for providing customer service (if any) to End Users. Omnibond does not provide any support or services to End Users unless Omnibond has a separate agreement with Customer or an End User obligating Omnibond to provide support or services.

2.7. Third Party Software Licenses. Customer is responsible for maintaining third party licenses and adhering to the license terms of any third party software Customer runs.

2.8. Maintenance. From time to time, Omnibond may offer or apply upgrades, patches, bug fixes or other maintenance to the Service Offerings (“Maintenance”). It is Customer’s responsibility to accept Omnibond’s updates and/or apply standard vendor updates to keep pace with any security practices Customer requires.

2.9. Third Party Content and Open Source Software. Third Party Content may be made available directly to Customer by other companies or individuals under separate terms and conditions, including separate fees and charges. Because Omnibond may not have tested or screened the Third Party Content, Customer’s use of any Third Party Content is at Customer’s sole risk. Furthermore, Omnibond may use Open Source Software in the Service Offerings, including the Software. All Open Source Software is licensed to Customer under the open source license applicable to each module of Open Source Software. If Omnibond is required to provide Customer with a copy of the source code for any Open Source Software, Omnibond will do so within a reasonable time after Customer’s written request and subject to a reasonable fee.

3. Fees and Payment

3.1. Service Fees. Service Provider calculates and bills fees and charges on Omnibond’s behalf. Customer will pay Service Provider the applicable fees and charges for use of the Service Offerings and Software as specified in the Master Agreement.

3.2. Taxes. All fees and charges payable by Customer are exclusive of applicable taxes and duties. If Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, Customer is responsible for providing Service Provider with legally-sufficient tax exemption certificates for each taxing jurisdiction.

4. Temporary Suspension

4.1. Generally. Omnibond may suspend Customer’s or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to Customer if Omnibond determines that: (a) Customer’s or an End User’s use of the Service Offerings, Software or Content (i) poses a security risk to the Services, Service Offerings, Software or any third party, (ii) may adversely impact the Services, Service Offerings, Software or any other Services or Service Offerings customer, (iii) may subject Omnibond, its affiliates, or any third party to liability, or (iv) may be fraudulent; (b) Customer is, or any End User is, in breach of this Agreement, including if Customer is delinquent on Customer’s payment obligations to Service Provider for more than 15 days; or (c) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

4.2. Effect of Suspension. If Omnibond suspends Customer’s right to access or use any portion or all of the Service Offerings or Software: (a) Customer remains responsible for all fees and charges Customer has incurred through the date of suspension; (b) Customer remains responsible for any applicable fees and charges for any Service Offerings or Software to which Customer continues to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension; (c) Omnibond will not erase any of Customer’s Content as a result of Customer’s suspension, except as specified elsewhere in this Agreement. Omnibond’s right to suspend Customer’s or any End User’s right to access or use the Service Offerings or Software is in addition to Omnibond’s right to terminate this Agreement pursuant to Section 5.2.

5. Term; Termination

5.1. Term. The term of this Agreement will commence on the Effective Date and, unless terminated earlier pursuant to this Section 5, will remain in effect during the term of the Master Agreement as long as Customer is a current customer of Service Provider in good standing.

5.2. Termination. Notwithstanding anything to the contrary in the Master Agreement, either party may terminate this Agreement for cause upon 30 days advance written notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period. Omnibond may also terminate this Agreement immediately upon notice to Customer: (i) for cause, if any act or omission by Customer or any End User results in a suspension described in Section 4.1; or (ii) in order to comply with the law or requests of governmental or judicial authorities.

5.3. Effect of Termination. Upon any termination of this Agreement or the Master Agreement: (i) all Customer’s rights (including, but not limited to, the right to use or access the Software, Services or Service Offerings) under this Agreement immediately terminate; (ii) Customer remains responsible for all fees and charges Customer has incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination pursuant to the Master Agreement and any addenda thereto; (iii) Customer will immediately return or, if instructed by us, destroy all Omnibond Content including Software in Customer’s possession; and (iv) Sections 2.5, 5.3 and 6-13 will continue to apply in accordance with their terms. Any additional post-termination assistance from Omnibond is subject to mutual written agreement by Customer and Omnibond.

6. Proprietary Rights

6.1. Service Offerings License. As between Customer and Omnibond, Omnibond or its affiliates or licensors own and reserve all right, title, and interest in and to the Service Offerings and Software and all intellectual property rights embodied in the foregoing. Except as provided in this Agreement and the Master Agreement, Customer obtains no rights under this Agreement from Omnibond or its licensors to the Service Offerings or Software, including any related intellectual property rights. During and after the term, Customer shall not assert, nor will Customer authorize, assist, or encourage any third party to assert, against Omnibond or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service Offerings or Software Customer has used.

6.2. Suggestions. If Customer provides any Suggestions to Omnibond or its affiliates, Omnibond will own all right, title, and interest in and to the Suggestions, even if Customer has designated the Suggestions as confidential. Omnibond and its affiliates will be entitled to use the Suggestions without restriction. Customer hereby assigns and shall assign to Omnibond all right, title, and interest in and to the Suggestions and all intellectual property rights embodied therein and relating thereto, and Customer agrees to provide Omnibond any assistance Omnibond may require to document, perfect, and maintain Omnibond’s rights in the Suggestions. In addition, Customer waives any and all moral rights in or to the Suggestions.

7. Indemnification.

7.1. General. Where permitted by applicable by law, Customer will defend, indemnify, and hold harmless Omnibond, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Customer’s or any End Users’ use of the Service Offerings and Software (including any activities under Customer’s account and use by Customer’s employees and personnel); (b) breach of this Agreement or violation of applicable law by Customer or any End User; (c) Customer’s Content or the combination of Customer’s Content with other applications, content, data or processes, including any claim involving alleged infringement or misappropriation of a third-party’s rights or privacy by Customer’s Content or by the use, creation, development, design, production, advertising or marketing of Customer’s Content; or (d) a dispute between Customer and any End User. If Omnibond or its affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, Customer will also reimburse Omnibond for reasonable attorneys’ fees, as well as Omnibond’s employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at Omnibond’s then-current hourly rates.

7.2. Process. Omnibond will promptly notify Customer of any claim subject to Section 7.1, but Omnibond’s failure to promptly notify Customer will only affect Customer’s obligations under Section 7.1 to the extent that Omnibond’s failure prejudices Customer’s ability to defend the claim. Customer may: (a) use counsel of Customer’s own choosing (subject to Omnibond’s written consent) to defend against any claim; and (b) settle the claim as Customer deems appropriate, provided that Customer obtains Omnibond’s prior written consent before entering into any settlement. Omnibond may also assume control of the defense and settlement of the claim at any time.

8. Disclaimer of Warranties. The Software, Services and Services Offerings are provided AS IS. Omnibond does not warrant that any of the Software, Services or Service Offerings is error free or that Customer will be able to operate or access the Software, Services or Service Offerings without problems or interruptions. OMNIBOND DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, QUALITY, DURABILITY, PERFORMANCE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, USAGE, OR TRADE PRACTICE RELATING TO THE SOFTWARE AND SERVICE OFFERINGS.

9. Limitations of Liability. IN NO EVENT WILL OMNIBOND OR ITS SUPPLIERS, AFFILIATES OR LICENSORS BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER OMNIBOND NOR ANY OF ITS SUPPLIERS, AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S INABILITY TO USE THE SOFTWARE, SERVICES OR SERVICE OFFERINGS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SOFTWARE, SERVICES OR SERVICE OFFERINGS, (II) OMNIBOND’S DISCONTINUATION OF ANY OR ALL OF THE SOFTWARE, SERVICES OR SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLAS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SOFTWARE, SERVICES OR SERVICE OFFERINGS FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SOFTWARE, SERVICES OR SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CUSTOMER’S CONTENT OR OTHER DATA. IN ANY CASE, OMNIBOND’S AND ITS AFFILIATES’, SUPPLIERS’ AND LICENSORS’ AGGREGATE LIABILITY TO CUSTOMER AND END USERS UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAYS OMNIBOND UNDER THIS AGREEMENT FOR THE SOFTWARE, SERVICES OR SERVICE OFFERINGS THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.

10. Modifications to the Agreement. This Agreement may be modified only upon written consent of both parties.

11. Confidentiality. Customer shall not, during or subsequent to the term of this Agreement, use or disclose Omnibond’s Confidential Information for any purpose whatsoever other than as permitted under this Agreement and the Master Agreement or disclose Omnibond’s Confidential Information to any third party. Confidential Information and all intellectual property rights embodied therein and relating thereto will remain Omnibond’s sole property. Customer shall take all reasonable precautions to prevent any unauthorized disclosure of Omnibond’s Confidential Information. Upon the termination of this Agreement, or upon Omnibond’s earlier request, Customer shall deliver to Omnibond all of Omnibond’s property or Confidential Information that Customer may have in Customer’s possession or control. This Agreement supersedes any prior agreement entered into between the parties relating to the confidentiality of any Confidential Information disclosed by Discloser. This Section 11 shall survive termination of this Agreement and the Master Agreement in perpetuity.

12. Miscellaneous.

12.1. Publicity. Neither party will issue any press release or make any other public communication with respect to this Agreement or the Service Offerings without the prior written consent of the other party.

12.2. Force Majeure. Notwithstanding anything to the contrary in this Agreement or the Master Agreement, Omnibond and its affiliates will not be liable for any delay or failure to perform any obligation where the delay or failure results from any cause beyond Omnibond’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

12.3. Independent Contractors; Non-Exclusive Rights. Omnibond and Customer are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.

12.4. No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.

12.5. Import and Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, Customer is solely responsible for compliance related to the manner in which Customer chooses to use the Service Offerings, including Customer’s transfer and processing of Customer’s Content, the provision of Customer’s Content to End Users, and the hosting provider region in which any of the foregoing occur.

12.6. Notice. To give notice under this Agreement, each party will contact the other party at the address provided in the preamble of this Agreement. Either party may update its address from time to time upon written notice to the other party. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.

12.7. Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.

12.8. Assignment. Notwithstanding anything to the contrary in the Master Agreement, Customer will not assign this Agreement, or delegate or sublicense any of Customer’s rights under this Agreement, without Omnibond’s prior written consent. Any assignment or transfer in violation of this Section 12.8 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

12.9. No Waivers. The failure by either party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor such party’s right to enforce such provision at a later time. All waivers by a party must be in writing to be effective.

12.10. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

12.11. Choice of Law; Forum and Venue. This Agreement shall be governed by the laws of the State of the State of South Carolina excluding its conflicts of law provisions. All disputes arising out of this Agreement will be brought before the state and federal courts in Charleston, South Carolina.

12.12. Changes. In Omnibond’s sole discretion, Omnibond may change the Software, Services or Service Offerings (including the Software, Services or Service Offerings as a whole) or change or remove features or functionality of the Software, Services or Service Offerings from time to time. Omnibond will notify Customer of any material change to the Service Offerings.

12.13. Entire Agreement. This Agreement includes the Policies and is the entire agreement between Customer and Omnibond regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Omnibond, whether written or verbal, regarding the subject matter of this Agreement. To the extent this Agreement conflicts with the terms of the Master Agreement, the terms of this Agreement shall prevail. Omnibond will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by Customer in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control.

13.Definitions.

“Acceptable Use Policy” means the policy currently available at (omnibond.com/acceptable-use-policy), as it may be updated by Omnibond from time to time.

“API” means an application program interface.

“Confidential Information” means any information, technical data, trade secrets or know-how disclosed by us, either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment, including, but not limited to, source code, research, algorithms, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information. Confidential Information does not include: (a) information, ideas, and concepts that are, or subsequently may become, within the knowledge of the public generally through no fault of Customer; (b) information, ideas, and concepts that Customer can show were previously known to Customer as a matter of record at the time of receipt; (c) information, ideas, and concepts that may subsequently be obtained lawfully from a third party who has lawfully obtained or created the information through no fault of Customer; and (d) information, ideas, and concepts that may subsequently be developed as a matter of record, independently of disclosure by Customer.

“Content” means all data, text, audio, video, images, data or other content provided to Service Provider or Omnibond so that Omnibond may perform the Service.

“Customer’s Content” means Content Customer or any End User (a) runs on the Services, (b) causes to interface with the Services, or (c) uploads to the Services under Customer’s account or otherwise transfer, process, use or store in connection with Customer’s hosting provider account.

“Documentation” means the developer guides, getting started guides, user guides, quick reference guides, and other technical and operations manuals and specifications for the Services located on the Omnibond Sites, as such documentation may be updated by Omnibond from time to time.

“End User” means any individual or entity that directly through Customer: (a) accesses or uses Customer’s Content; or (b) otherwise accesses or uses the Service Offerings under Customer’s account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own hosting provider account, rather than Customer’s account.

“Master Agreement” means the Equipment Purchase and Services Agreement between Customer and Service Provider.

“Omnibond Confidential Information” means all nonpublic information disclosed by Omnibond, its affiliates, business partners or its or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Omnibond Confidential Information includes: (a) nonpublic information relating to Omnibond’s or its affiliates’ or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that Omnibond is obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between Customer and Omnibond or its affiliates. Omnibond Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to Customer at the time of Customer’s receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by Customer without reference to the Omnibond Confidential Information.

“Omnibond Content” means Content Omnibond or any of its affiliates make available in connection with the Services or on the Service Offerings to allow access to and use of the Services, including WSDLs; Documentation; sample code; software libraries; command line tools; and other related technology. Omnibond Content does not include the Services or Licensed Software.

“Omnibond Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Omnibond and its affiliates that Omnibond may make available to Customer in connection with this Agreement.

“Omnibond Sites” mean omnibond.com, cloudycluster.com, orangefs.com, trafficvision.com and any successor or related sites owned or designated by Omnibond.

“Open Source Software” means third party software that is subject to a license that requires that such software or other software combined and/or distributed with such software be (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge.

“Policies” means the Acceptable Use Policy, the Trademark Use Guidelines, all restrictions described in the Omnibond Content and on the Omnibond Sites, and any other policy or terms referenced in or incorporated into this Agreement. Policies does not include whitepapers or other marketing materials referenced on Omnibond Sites.

“Service” means each of the services made available by Omnibond or its affiliates, including processing or managing data generated by Service Provider’s equipment and related software.

“Service Offerings” means the Services (including associated APIs), the Omnibond Content, the Omnibond Marks, the Omnibond Sites, and any other product or service provided by Omnibond under this Agreement. Service Offerings do not include Third Party Content or the Software.

“Service Provider” means reseller, integrator or OEM of BayTracker software.

“Software” has the meaning set forth in Master Agreement.

“Suggestions” means all suggested improvements, enhances, modifications or feedback relating to the Software, Services or Service Offerings that Customer provides, directly or indirectly, to Omnibond, or that any End User provides, directly or indirectly to Omnibond or Customer.

“Third Party Content” means Content made available to Customer by any third party on Omnibond Sites or in conjunction with the Services. Third Party Content does not include Open Source Software.

“Trademark Use Guidelines” means the guidelines and license located at http://www.omnibond.com/omnibond-media/ as they may be updated by Omnibond from time to time.

[End of BayTracker Terms of Use]