OMS-Next

Terms of service

updated on June 10, 2020

THIS TERMS OF SERVICE IS A LEGAL AGREEMENT BETWEEN OMS-Next.com operated by ARA Ventures (“OMS-Next”, “WE”, “OUR”, “US”) AND YOU (“YOU”), REGARDING THE SERVICES PROVIDED TO YOU THROUGH KEY COMPONENTS (“SITE”). READ IT CAREFULLY. BY USING AND/OR PAYING FOR THE SERVICE(S) SET OUT HEREIN YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH INCLUDES OUR PRIVACY POLICY INCORPORATED HEREIN BY REFERENCE. BY USING THE SITE OR SERVICES YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ARA Ventures. IF YOU USE THE SERVICES ON BEHALF OF YOUR EMPLOYER, YOU WARRANT THAT YOU ARE AUTHORIZED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF YOUR EMPLOYER AND THE SAME RIGHTS, LIMITATIONS AND RESTRICTIONS APPLY TO YOUR EMPLOYER. WE ARE RELYING UPON YOUR REPRESENTATION THAT YOU MAY BIND YOUR EMPLOYER TO THE TERMS OF THIS AGREEMENT. IF YOU AND/OR YOUR EMPLOYER DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR IF YOU ARE NOT AUTHORIZED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF YOUR EMPLOYER, YOU MUST NOT USE THE SERVICE(S) OR MAKE ANY PAYMENT.

We may revise and update these Terms of Service from time to time at our sole discretion. All changes are effective immediately when posted and apply to all access to and use of the Site and Services thereafter. For all such revisions, we will notify you of the applicable changes via your email address we have on files. If you have opted out of email updates and/or have unsubscribed from our update list, it is your responsibility to check these Terms of Service periodically for changes, as these changes are binding on you. Your continued use of the Site or Services following the posting of changes to these Terms of Service means that you accept and agree to such changes.

NOTICE REGARDING DISPUTE RESOLUTION: These Terms of Service contain provisions that govern the resolution of claims between you and OMS-Next.

Technologies. They also include an agreement to arbitrate, which will, with limited exceptions, require you to submit claims you have against us to binding and final arbitration. Unless you opt out, you will only be able to pursue claims against OMS-Next on an individual basis, not as part of any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

1. Grant of License to Access and Use Service.
   non-sublicensable, non-assignable, royalty-free, and worldwide license to access OMS-Next hereby grants to you, including all your Authorized Users, a non-exclusive, and use the OMS-Next platform (the “Service”) solely for your business operations.
2. Subscription Fees.
   1. You shall pay OMS-Next a required subscription fee (the “Subscription Fee”) for the Service provided. Any and all payments made by you to OMS-Next for the Services are final and non-refundable.
   2. Subscription Fee shall be paid within 5 business days from the date of invoice.
3. Service Levels
   
   1. Applicable Levels. OMS-Next shall provide the Service to you with a Service Availability of at least 99.9% during the Subscription Term.
   2. System Maintenance. OMS-Next may take the Service offline for scheduled maintenance given that it provides you the schedule for such maintenance in writing (though this scheduled maintenance time will not count as Service Availability).
   3. Service Availability Definition
      1. Percentage of Minutes per Month. “Service Availability” means the percentage of minutes in a month that the key components of the Service are operational.
      2. Not Included in “Service Availability. “Service Availability” will not include any minutes of downtime resulting from
         1. scheduled maintenance,
         2. events of force majeure,
         3. malicious attacks on the system,
         4. issues associated with your computing devices, local area networks or internet service provider connections, or
         5. OMS-Next’s inability to deliver services because of your acts or omissions.
4. Privacy.
   We value your privacy and understand your privacy concerns. Please review our Privacy Policy, which also governs your access to and use of the Site and Services, so that you may understand our privacy practices. All information we collect is subject to our Privacy Policy, and by using the Site or Services you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
5. Data Privacy and Safeguard.
   OMS-Next’s Data Processing Agreement is a separate document and part of this agreement.
6. Representations
   1. Mutual Representations
      1. Existence. The parties are corporations incorporated and existing under the laws of the jurisdictions of their respective incorporation.
      2. Authority and Capacity. The parties have the authority and capacity to enter into this agreement.
      3. Execution and Delivery. The parties have duly executed and delivered this agreement.
      4. Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms.
      5. No Conflicts. Neither party is under any restriction or obligation that might affect the party’s performance of its obligations under this agreement.
      6. No Breach. Neither party’s execution, delivery, or performance of its obligations under this agreement will breach or result in a default under
         1. its articles, bylaws, or any unanimous shareholders agreement,
         2. any Law to which it is subject,
         3. any judgment, Order, or decree of any Governmental Authority to which it is subject, or
         4. any agreement to which it is a party or by which it is bound.
      7. Permits, Consents, and Other Authorizations. Each party holds all Permits and other authorizations necessary to
         1. own, lease, and operate its properties, and
         2. conduct its business as it is now carried on.
      8. No Disputes or Proceedings.
         There are no Legal Proceedings pending, threatened, or foreseeable against either party, which would affect that party’s ability to complete its obligations under this agreement.
      9. No Bankruptcy
         Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.
   2. OMS-Next’ Representation
      1. Ownership. OMS-Next is the exclusive legal owner of the Service, including all Intellectual Property included in the Service and granted under the Service.
      2. Status of Licensed Intellectual Property. OMS-Next has properly registered and maintained all Intellectual Property included in the Service and paid all applicable maintenance and renewal fees.
      3. No Conflicting Grant. OMS-Next has not granted and is not obligated to grant any license to a third party that would conflict with the Service.
      4. No Infringement. The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party.
      5. No Third Party Infringement. To OMS-Next’ Knowledge, no third party is infringing on the Service.
7. User Obligations
   1. Hardware Obligations. you shall be responsible for
      1. obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service
      2. paying all third-party access charges incurred while using the Service.
   2. Anti-Virus Obligations. you shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively “Viruses”).
   3. YOUR Use of Services. you shall
      1. abide by all local and international Laws and regulations applicable to its use of the Service,
      2. use the Service only for legal purposes, and
      3. comply with all regulations, policies, and procedures of networks as per the Terms of Service
8. Restricted Uses.
   1. you will not
      1. modify, disassemble, decompile or reverse engineer the Service,
      2. probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service,
      3. take any action that imposes an unreasonable or disproportionately large load on the sites, servers, or networks connected to the Service,
      4. copy or reproduce the Service,
      5. access or use any other clients’ or their users’ data through the Service,
      6. maliciously reduce or impair the accessibility of the Service,
      7. use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or
      8. transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability.
   2. Restrictions in section 8.1 shall apply only to your employees and Authorized Users.
   3. Restrictions in section 8.1 shall not apply to website visitors of your websites who are not your employees and Authorized Users.
9. Confidentiality
   1. Each Party acknowledges that any information relating to the business, products, practices, customers and such other information identified by the other party as confidential at or prior to such disclosure (“Confidential Information”) disclosed to it by the other party (unless pursuant to another written Agreement signed by the authorized representatives of the parties) is for the purpose set forth in this Agreement and agrees to maintain such material, information, or disclosures in confidence. This provision shall not apply to any material, information or other disclosure.
      1. that can be demonstrated to have been in the public domain prior to its disclosure, or
      2. that can be demonstrated to have been in the other party’s possession prior to its disclosure; or
      3. to the extent supplied, without restrictions on use, by a third party who is lawfully in possession of such material, information or other disclosure and is entitled to supply it.
   2. Each Party shall maintain the Confidential Information as strictly confidential and shall use the Confidential Information only in connection with the proper discharge and performance of its obligations to the other party
10. Intellectual Property Rights
    1. Each Party shall retain all right, title and interest in its patents, copyrights, trademarks, trade name, trade dress, service marks and trade secrets and/or creation, model, data, flowchart, drawing, design, diagram, table, artwork, innovation or any other information or material (“Intellectual Property Rights”). No interest whatsoever in the other Party’s Intellectual Property Rights is granted by this Agreement and the use of any Intellectual Property Right permitted to one Party by the other Party shall be strict as mutually agreed by the Parties.
    2. Neither Party shall use the Intellectual Property of the other Party in any manner whatsoever without the prior written consent of the other Party or as provided hereunder.
11. Subscription Term.
    This Agreement shall commence on the Effective Date and shall remain in effect for the Subscription Period unless terminated earlier by either party pursuant to this Agreement.
12. Termination
    1. Termination on Notice. you may terminate this agreement for any reason on 22 business days’ notice to the other party.
    2. Termination for Material Breach. If either party materially breaches any of its duties or obligations under this Agreement, and such breach is not cured within thirty (30) calendar days of the non-breaching party providing the breaching party of written notice of the breach, the non-breaching party may terminate this Agreement.
    3. Termination for Failure to Pay. OMS-Next may terminate this agreement with immediate effect by delivering notice of termination to you if you fail to pay the Subscription Fee within 7 business days after written notice.
13. Effect of Termination
    1. Pay Outstanding Amounts. You shall immediately pay to OMS-Next all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.
    2. Discontinuance of Use. You shall cease all use of the Service upon the effective date of the termination.
    3. Recovery of Data. You will have 30 calendar days from the date of termination to retrieve any of the data that you wish to keep.
14. Limited Warranty
    1. Limited Warranty. OMS-Next warrants, for your benefit only, that each Service will operate in substantial conformity with the applicable documentation. OMS-Next’s sole liability (and your sole and exclusive remedy) for any breach of this warranty will be, at no charge to you, for OMS-Next to use commercially reasonable efforts to correct the reported non-conformity, or if OMS-Next determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and you will receive as its sole remedy a refund of any fees you have pre-paid for use of such Service for the terminated portion of the applicable Term. The limited warranty set forth in this section will not apply:
       1. unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity,
       2. if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or
       3. to use provided on a no-charge, trial or evaluation basis.
    2. Warranty Disclaimer. Except for the limited warranty in section 17.a, all services and professional services are provided “as is”. Neither OMS-Next nor its suppliers make any other warranties, express or implied, statutory or otherwise, including but not limited to the warranties of merchantability, title, fitness for a particular purpose or non-infringement. OMS-Next does not warrant that your use of the service will be uninterrupted or error-free, nor does OMS-Next warrant that it will review your data for accuracy or that it will preserve or maintain your data without loss or corruption. OMS-Next shall not be liable for the results of any communications sent or any communications that were failed to be sent using the services. OMS-Next shall not be liable for delays, interruptions, service failures or other problems inherent in the use of the internet and electronic communications, third-party platforms or other systems outside the reasonable control of OMS-Next. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law.
15. Indemnification
    1. Indemnification by OMS-Next.
       1. Indemnification for Infringement Claims. OMS-Next (as an indemnifying party) shall indemnify you (as an indemnified party) against all losses and expenses arising out of any proceeding
          1. brought by a third party, and
          2. arising out of a claim that the Service infringes the third party’s Intellectual Property rights
       2. .Qualifications for Indemnification. OMS-Next will be required to indemnify you only if
          1. your use of the Service complies with this agreement and all documentation related to the Service,
          2. the infringement was not caused by you modifying or altering the Service or documentation related to the Service unless OMS-Next consented to the modification or alteration in writing, and
          3. the infringement was not caused by you combining the Service with products not supplied by OMS-Next unless OMS-Next consented to the combination in writing.
    2. Mutual Indemnification. Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding
       1. brought by either a third party or an indemnified party, and
       2. arising out of the indemnifying party’s willful misconduct or gross negligence.
    3. Notice and Failure to Notify
       1. Notice Requirement. Before bringing a claim for indemnification, the indemnified party shall
          1. notify the indemnifying party of the indemnifiable proceeding, and
          2. deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
       2. Failure to Notify. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying party will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure.
16. Exclusive Remedy.
    The parties’ right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section.
17. Limitation on Liability
    1. Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.
    2. Maximum Liability. OMS-Next’ liability under this agreement will not exceed the fees paid by you under this agreement during the 12 months preceding the date upon which the related claim arose.
18. Definitions
    “Authorized Users” means the list of Persons authorized to use the Services under this agreement.
    “Business Day” means a day other than a Saturday, Sunday, or any other day on which the principal banks located in Bangalore, India is not open for business.
    “Data” means all of the data you create with or uses with the Service, or otherwise related to your use of the Services.
    “Effective Date” means the date which You commence using the Services.
    “Governmental Authority” means
    (a) any federal, central, state, local, or foreign government, and any political subdivision of any of them,
    (b) any agency or instrumentality of any such government or politic
    (c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and
    (d) any arbitrator, court or tribunal of competent jurisdiction

    “Intellectual Property” means any and all of the following in any jurisdiction throughout the world
    (a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
    (b) copyrights, including all applications and registrations related to the foregoing,
    (c) trade secrets and confidential know-how,
    (d) patents and patent applications,
    (e) websites and internet domain name registrations, and
    (f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing).

    “Law” means
    (a) any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and
    (b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirements of any Governmental Authority having the force of law.

    “Legal Proceeding” means any claim, investigation, hearing, legal action, or other legal, administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or review of any of the foregoing).
    “Subscription Plan” means the OMS-Next-approved service usage plan that YOU has agreed and subscribed to.
    “Key components” means all the functionalities of the admin console available under your account.
    “Permits” means all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party’s business.

    “Person” includes
    (a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and
    (b) any individual.

    “Service” is defined in section 1
    “Subscription Fee” is defined in section 2.
    “Service Availability” is defined in section 3.3.

    “Taxes” includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.

    “Term” is defined in section 11.
    “Viruses” is defined in section 10.

19. General Provisions
    1. Entire Agreement. The parties intend that this agreement, together with all attachments, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,
       1. represent the final expression of the parties’ intent relating to the subject matter of this agreement,
       2. contain all the terms the parties agreed to relate to the subject matter, and
       3. replace all of the parties’ previous discussions, understandings, and agreements relating to the subject matter of this agreement.
20. Assignment.
    Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent.
21. Notices
    1. Method of Notice. The parties shall give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid, or (iv) electronic mail to the party’s address specified in this agreement, or to the address that a party has notified to be that party’s address for the purposes of this section.
    2. Receipt of Notice. A notice given under this agreement will be effective on
       1. the other party’s receipt of it, or
       2. if mailed, the earlier of the other party’s receipt of it and the fifth business day after mailing it.
22. Governing Law.
    This agreement shall be governed, construed, and enforced in accordance with the laws of India, without regard to its conflict of laws rules.
23. Severability.
    If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
24. Waiver
    1. Affirmative Waivers. Neither party’s failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party’s rights.
    2. Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.
    3. No General Waivers. A party’s failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
    4. No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
25. Force Majeure.
    Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations.
26. Privacy Policy
    OMS-Next’s Privacy Policy is a separate document and part of this agreement.