Terms Updated 13th March 2013
Welcome to OMNIMax™’s online Engagement Tools and AdviceMap Plan writer Software as a Service (SaaS). These Terms of Service are intended to explain our obligations as a service provider and Your obligations as a customer. Please read them carefully.
These Terms are binding on any use of the Service and apply to You from the time that OMNIMax™ provides You with access to the Service.
The OMNIMax™ Service will evolve over time based on user feedback. These Terms are not intended to answer every question or address every issue raised by the use of the OMNIMax™ Service.
OMNIMax™ reserves the right to change these terms at any time, effective upon the posting of modified terms and OMNIMax™ will make every effort to communicate these changes to You via email or notification via the Website. It is likely the terms of service will change over time. It is Your obligation to ensure that You have read, understood and agree to the most recent terms available on the Website.
By registering to use the Service you acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.
WHAT WE MEAN BY
“Agreement” means these Terms of Service
“Access Fee” means the monthly or annual fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Website (which OMNIMax™ may change from time to time on notice to You).
“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
“Data” means any data inputted by You or with Your authority into the Website.
“Intellectual Property Right” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Service” means the online Client Engagement and AdviceMap Planwriting Solutions made available (as may be changed or updated from time to time by OMNIMax™) via the Website.
“Website” means the Internet site at the domain www.omnimaxsoftware.com or any other site operated by OMNIMax.
“OMNIMax™” means OMNIMax™ Software Solutions Limited which is a New Zealand privately held company and all current and future global subsidiaries of OMNIMax™ Software Solutions Limited including, without limitation OMNIMax™ India Pvte Ltd (India).
“Invited User” means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
“Engagement” means an online interaction with the Service by a member of the public (Client Engagement User), facilitated by the Subscriber via either an email invitation, a website link or an email marketing campaign.
“Client Engagement User” means any user who accepts an invitation to complete an Engagement either via personal email invitation from the Subscriber or via the Subscriber’s website or Subscriber’s email marketing campaign.
“Client” means anyone who the Subscriber provides professional services to, whether they interact directly via the Service or not.
“Third Party Software Solutions” means software solutions provided by others and integrated within OMNIMax™ which require a separate subscription from You as the Subscriber.
“Subscriber” means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
“You” means the Subscriber, and where the context permits, an Invited User. “Your” has a corresponding meaning.
SOFTWARE USAGE POLICY
OMNIMax™ grants You the right to access and use the Service via the Website with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:
- the Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;
- the Subscriber is responsible for all Invited Users’ use of the Service;
- the Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
- if there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any;
YOUR FIT FOR PURPOSE OBLIGATIONS
The suitability of the solutions offered needs to be assessed by each Subscriber within their own legal jurisdiction and whether or not You are permitted to provide such solutions to the general public.
- Both the Engagements Tools and AdviceMap Plan Writer outcomes are based on assumptions entered by the subscriber, which are the exclusive responsibility of the subscriber. Any default figures or narrative entered by OMNIMax™ are indicative only and You need to adopt or change them to ensure that they meet the compliance standards within the jurisdiction relevant to You.
- OMNIMax™ Service facilitates the delivery of Professional Advice through the collection and analysis of Client data based on assumptions provided by You. You are responsible for interpreting these outcome in light of the client’s needs. OMNIMax™ does not intend or claim to provide any personal advice in its own right.
- It is the Subscribers responsibility to ensure that Client Engagement Users are presented with / have access to, if required, any required compliance documentation, Eg. disclosure documents, prior to participating in an Engagement.
INTEGRATION WITH THIRD PARTY SOLUTIONS
Where OMNIMax™ facilitates the integration with third party solutions it is the users responsibility to secure the legal right to do so and to assess suitability and meet any contractual requirements by third parties.
The subscriber is responsible for obtaining subscription to any third party software, which is integrated with OMNIMax™;
An invoice for the Access Fee and usage will be issued when you choose a paid subscription to the Service and on subsequent monthly anniversaries. Any additional usage or charges will be invoiced and debited one month in arrears. OMNIMax™ will continue invoicing You monthly until this Agreement is terminated in accordance with clause 15. All OMNIMax™ invoices will be sent to You via email. Payment of all amounts specified in any invoice will be auto debited to the Credit Card with which the subscription was initiated. The name that will appear on your statement will be “OMNIMax Software Solutions Ltd”. You are responsible for keeping your Credit Card details current. You are responsible for the payment of any additional usage, taxes and duties in addition to the Access Fee.
You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by OMNIMax™ or condition posted on the Website. You may use the Service and Website on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.
- You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify OMNIMax™ of any unauthorised use of Your passwords or any other breach of security and OMNIMax™ can reset Your password. You must take all other actions that OMNIMax™ reasonably deems necessary to maintain or enhance the security of OMNIMax™’s computing systems and networks and Your access to the Services.
- As a condition of these Terms, when accessing and using the Services, You must:
- not attempt to undermine the security or integrity of OMNIMax‘s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
- not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
- not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
- not transmit, or input into the Website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
- not use any templated Risk Profiler, which is the IP of another party, that you do not have the right to access and use.
Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes (reasonable use policy). Any such limitations will be advised.
As a condition of these Terms, if You use any communication tools available through the Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
When You make any communication on the Website, You represent that You are permitted to make such communication. OMNIMax™ is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. However, OMNIMax™ does reserve the right to remove any communication at any time in its sole discretion.
You indemnify OMNIMax™ against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to OMNIMax, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
CONFIDENTIALITY AND PRIVACY
Unless the relevant party has the prior written consent of the other or unless required to do so by law:Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.Each party’s obligations under this clause will survive termination of these Terms. The provisions of clauses 11.1. Confidentiality and 11.2 Privacy shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of OMNIMax™ (or its licensors).
- Ownership of Data:
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the OMNIMax™ Access Fee when due. You grant OMNIMax™ a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
- Backup of Data:
You must maintain copies of all Data inputted into the Service. OMNIMax™ adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime through an accredited data centre, but does not make any guarantees that there will be no loss of Data. OMNIMax™ expressly excludes liability for any loss of Data no matter how caused.
- Third-party applications and your Data:
If You enable third-party applications for use in conjunction with the Services, You acknowledge that OMNIMax™ may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. OMNIMax™ shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
WARRANTIES AND ACKNOWLEDGEMENTS
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You acknowledge that:
- You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service.
- You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
- OMNIMax™ has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a corporate entity or otherwise) you agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorising any person who is given access to information or Data, and you agree that OMNIMax™ has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
You will indemnify OMNIMax™ against any claims or loss relating to:
OMNIMax’s refusal to provide any person access to Your information or Data in accordance with these Terms, OMNIMax’s making available information or Data to any person with Your authorisation.
- As is basis:
The provision of, access to, and use of, the Services is on an “as is ” basis and at Your own risk.
- OMNIMax™ does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. OMNIMax™ is not in any way responsible for any such interference or prevention of Your access or use of the Services.
- OMNIMax™ is not Your Compliance Auditor and use of the Services does not constitute the receipt of compliance advice. If You have any compliance questions, please contact your territorial regulatory authority.
- It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
- You remain solely responsible for complying with all applicable legislation relating to the offering of Financial Services. It is Your responsibility to check that storage of and access to your Data via the Software and the Website will comply with laws applicable to you (including any laws requiring you to retain records).
- No Warranties:
OMNIMax™ gives no warranty about the Services. Without limiting the foregoing, OMNIMax™ does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
- Consumer Guarantees:
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.
LIMITATION OF LIABILITY
- To the maximum extent permitted by law, OMNIMax™ excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
- If You suffer loss or damage as a result of OMNIMax’s negligence or failure to comply with these Terms, any claim by You against OMNIMax™ arising from OMNIMax’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.
- If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 15.
- Trial policy:
When You first sign up for access to the Services You can evaluate the Services under the defined trial usage conditions, with no obligation to continue to use the Services. If You choose to continue using the Services thereafter, You will be billed from the day You first added Your billing details into the Services.
- Pre-paid subscription policy:
OMNIMax™ will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
- No-fault termination:
These Terms will continue for the period covered by the Access Fee paid or payable under clause 5. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.
- breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
- breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any payment of Access Fees that are more than 30 days overdue); or
- You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction, OMNIMax™ may take any or all of the following actions, at its sole discretion:
- Terminate this Agreement and Your use of the Services and the Website;
- Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
- Suspend or terminate access to all or any Data.
- Take either of the actions in sub-clauses (d), (e) and (f) of this clause 15(4) in respect of any or all other persons whom You have authorised to have access to Your information or Data.
- Accrued Rights:
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
- remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- immediately cease to use the Services and the Website.
- Expiry or termination:
Clauses 3. Your Fit for Purpose Obligations, 5. Payment Obligations, 9. Communication Conditions, 11. Confidentiality & Privacy, 12. Intellectual Property, 13. Warranties & Acknowledgements, 14. Limitation of Liability, 15. Termination and 17. General, survive the expiry or termination of these Terms.
- Technical Problems:
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting OMNIMax. If You still need technical help, please check the support provided online by OMNIMax™ on the Website or failing that email us at email@example.com.
- Service availability:
Whilst OMNIMax™ intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place.If for any reason OMNIMax™ has to interrupt the Services for longer periods than OMNIMax™ would normally expect, OMNIMax™ will use reasonable endeavours to publish in advance details of such activity on the Website.
- Entire agreement:
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
- No Assignment:
You may not assign or transfer any rights to any other person without OMNIMax™’s prior written consent.
- Governing law and jurisdiction:
These terms and conditions are governed by the laws of New Zealand. You submit to the non-exclusive jurisdiction of the Courts of New Zealand.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to OMNIMax™ must be sent to firstname.lastname@example.org or to any other email address notified by email to You by OMNIMax. Notices to You will be sent to the email address, which You provided when setting up Your access to the Service.
- Rights of Third Parties:
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.