Omnipresent Customer Agreement
Effective starting: June 22nd, 2016
Welcome to Omnipresent.
This Customer Agreement (the “Agreement”) contains the terms and conditions between you or the entity you represent (“you”) and Bleum Incorporated (“Bleum”), intended to explain our obligations as a service provider and your obligations as a customer, and are binding on any use of the service and apply to you from the time that Bleum provides you with access to and use of the Omnipresent products (as defined below). Bleum may modify this Agreement from time to time, subject to the terms in Section 24 (Changes to this Agreement) below.
By registering the Omnipresent account or by using or accessing Omnipresent products, you acknowledge that you have read and understood there terms and have the authority to act on behalf of any person for whom you are using the product. You are deemed to have agreed to these terms on behalf of any entity for whom you use the products.
You will be taken to have accepted that policy when you accept terms of this Agreement. This Agreement applies to all the products that you purchase from Bleum.
2.Account Registration. This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. You may need to register for an Omnipresent account in order to place orders or access or receive Products from Bleum. Any registration information that you provide to us must be accurate, current and complete. We may contact you about our notices or other information by email or through your account.
3.Types of Omnipresent Products. Through Omni present, Bleum provides (a) downloadable software products (“Software”), (b) Omnipresent’s hosted or cloud-based solutions (“Hosted Services”), and (c) any related support or maintenance services provided by Omnipresent. Software and Hosted Services, together with related Documentation, are referred to as “Products”. The Products and their permitted use are further described in Omnipresent’s standard documentation (“Documentation”). Unless otherwise specified, “Products” in this Agreement apply to all Products of Omnipresent.
4.Users. Only the specific individuals who have paid the required (“Authorized Users”) may access and use the Products. Some Products may allow you to designate other Authorized Users. The applicable fees of them may vary depend on the type of Authorized User or the Products they are allowed to access. Your customers are also allowed to have limited access to Products if permitted by you. And they shall also subject to this Agreement. You may increase the number of Authorized Users permitted to access your instance of the Product as long as you pay the applicable fee for them. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates.
5.1 Your License Rights. Subject to the provisions of this Agreement, Bleum grants you a non-exclusive, non-sublicenseable and non-transferable license to install and use the Software through Omnipresent. The term of each Software license (“License Term”) will be specified in your Order. Your License Term will end upon any termination of this Agreement, or otherwise upon the expiration date illustrated in your Order. The Software may require a license key to run, which will be described in Section 9 (Delivery).
5.2 Number of Instances. Unless otherwise specified in your Order, for each Software license that you purchase, you may install the Software on your system one instance for one production (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement).
5.3 Third Party Code. The Software may include code and libraries by third parties, including open source software.
6.Orders. Omnipresent’s Product Orders (“Order”) shall include: (a) number and type of Authorized Users, (b) storage or capacity for Hosted Services, (c) related information of licenses, copies or instances for Software, or (d) other applicable information about the Product. The term “Order” in this Agreement may also include applicable Product or Support and Maintenance renewal, or purchases that you make to increase or upgrade Products you have already purchased.
7.Hosted Services Terms.
7.1 Hosted Services. You will be granted a non-exclusive right to access and use the Hosted Services during the Term that you purchase for. You may use such software solely with the Hosted Service. You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services when we find necessary.
7.2 Subscriptions. Hosted Services are provided on a subscription basis during the specific term of your Order (“Subscription Term”). Unless otherwise specified in your Order, all subscriptions will be renewed automatically for periods same as your initial Subscription Term (and you will be charged at the then-current rates). If you cancel your subscription, it will terminate at the end of your last billing cycle. You acknowledge that you will not be refunded or be entitled to any credits on amounts accrued or paid prior to such termination.
7.3 Credentials. You must ensure that you and all the Authorized Users you permit keep their user IDs and passwords strictly confidential and will not share any confidential identification information with any unauthorized person. You are responsible for any and all actions taken using your accounts and passwords. You shall issue immediate notice to Bleum of any unauthorized use of your any authorized account when you become aware.
7.4 Customer Data. “Customer Data” means any data, content, code, video, images or any other materials that you upload or transmit to Hosted Services. You will retain all right, title and interest in your Customer Data. Subject to this Agreement, you acknowledge that you grant to Bleum a non-exclusive, royalty-free right to (a) use or create derivative works of your Customer Data, and (b) for Hosted Services that enable you to share your Customer Data or interact with other people, to distribute and publicly perform. Bleum may also access your account or instance in order to respond to your support requests. Bleum will only make use of Customer Data in providing applicable Hosted Service to you.
7.5 Security. Bleum implements security procedures to help protect your Customer Data from attackers. However, you acknowledge that the use of the Hosted Services may involve transmission of your Customer Data over networks that are not operated or controlled by Bleum. TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAW, BLEUM DOES NOT GUARANTEE OR WARRANT THAT ANY CONTENT YOU MAY STORE OR ACCESS THROUGH THE HOSTED SERVICE WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, AND APPLE SHALL NOT BE RESPONSIBLE SHOULD SUCH DAMAGE, CORRUPTION, LOSS, OR REMOVAL OCCUR. THOUGH OUR EXPERTS SHALL DO OUR BEST IN PROVIDING SECURITY SERVICES, WE STILL CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES TO BE ERROR-FREE, OR PERFECTLY SECURED.
7.6 Storage. There may be storage limits in our Hosted Service. Bleum reserves the right to charge for additional storage at the rates specified on our website. We may make changes to our current storage limits for the Hosted Services at our discretion, with or without notice to you.
7.7 Responsibility for Customer Data .
7.7.2 Sensitive Data. You will not submit to the Hosted Services (or use the Hosted Services to collect) any sensitive data defined and prohibited by any applicable Laws or other peremptory norms. Bleum has no liability under this Agreement for any of sensitive data provided or collected by you.
7.7.3 Indemnity for Customer Data. You will defend, indemnify and hold harmless Bleum from and against any loss, cost, liability or damage for which Bleum becomes liable arising from or relating to any claim relating to your Customer Data, including but not limited to any claim brought by a third party alleging that your Customer Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates any legal rights of a third party or violates applicable Laws. Any reasonable necessary cooperation of Bleum shall be at your expense.
7.8 Removals and Suspension. In the case that we deem such your action of uploading any content to the Hosted Services that may be a violation of this Agreement we may (1) remove the relevant content you uploaded from the Hosted Services or (2) suspend your account. We will generally inform you when we take such action and give you a reasonable time to make up of your violation. But we reserve the right to do actions aforesaid immediately and without notice to you when we find necessary, which shall not be regarded as a breach of this Agreement. These actions shall not be interpreted as a condition for rejecting or delaying in you payment of the Hosted Services you have described.
7.9 Deletion at End of Subscription Term. We will remove or delete your Customer Data within a reasonable period of time after your Subscription Term expires.
8.Support and Maintenance. Bleum will provide the support and maintenance services for the Products during your Subscription Term. The support and maintenance services will be provided according to the term specified in your Order. Support and maintenance for Software includes access to New Releases. You may use any New Releases when we provide them to you. “New Releases” shall include bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the software that we make generally commercially available to you.
9.Delivery. We will deliver the applicable software license keys or login instructions to the Hosted Services to you when we have received your payment. We will do the delivery aforesaid electronically. You acknowledge that Bleum has no further delivery obligation with respect to the Software after delivery of the license keys. The installation of the software shall be your own responsibility.
10.Payment. You agree to pay all fees of the Order you placed. Unless otherwise specified in your Order, you will pay in U.S. dollars at the time you place your Order. You acknowledge that all amounts are non-refundable, non-cancelable and non-creditable, unless otherwise specified in this Agreement. You acknowledge that we will charge you for the increased number of Authorized Users, if any, and the charge will be based on the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable.
11.Taxes. All amounts stated in this Agreement are net of, and you agree to pay, or reimburse Bleum for, all taxes in addition to any fees owed under this Agreement. In the case that you have obtained an exemption from relevant taxes or duties, you can provide to Bleum any such exemption information. Bleum will use reasonable efforts to provide such invoicing documents and you may be enabled a refund or credit for the amount paid from relevant revenue authority if available.
12.No-Charge Products. We may offer certain Products to you at no charge, including free package and access to beta versions (“No-Charge Products”). Your use of No-Charge Products is subject to the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes which may cause any damage to the interest of Bleum. We may terminate your right to use No-Charge Products at any time and for any, with no liability to you. You understand that any pre-release and beta products available to you (“Beta Versions”) are still under development, and may be inoperable or incomplete at some extent. We make no promises that any Beta Versions will ever be made generally or freely available. All information regarding the characteristics, features or performance of Beta Versions constitutes Bleum’s Confidential Information. We reserve all rights, title and interests upon all No-Charge Products we provide, including but not limited to all kinds of intellectual property rights.
13.Ownership and Feedback. Products are made available on a limited license or access basis. Bleum reserves the ownership rights or title of all of the Products, in any forms of division or as whole, irrespective of the use of terms such as “purchase” or “sale”. Bleum and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), any and all related or underlying technology, and any modifications or derivative works of the foregoing created by Bleum or for Omnipresent (“Omnipresent Technology”). You can submit comments, information, questions, data, ideas, description of processes, or other information to Bleum, including sharing your modifications or in the course of receiving Support and Maintenance (“Feedback”). Bleum may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation or restriction based on intellectual property rights or otherwise. Bleum has the right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
14.Restrictions. Except as otherwise expressly permitted in this Agreement, you shall not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, provide access to the Products to, or incorporate any Product into a product or service you provide to, or , or for the benefit of any third party, ((b) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (c) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, unless permitted by laws, (d) remove or obscure any proprietary or other notices contained in any Product, or (e) publicly disseminate information regarding the performance of the Products.
15.Confidentiality. It is agreed by both parties that all code, know-how, inventions, or other technical information, together with financial and business information that disclosed to the receiving party by the disclosing party shall be regarded as confidential property of the disclosing party (“Confidential Information”), unless otherwise expressed in this Agreement. Such information shall be identified as confidential at the time of disclosure. Any Omnipresent Technology and any performance information relating to the Products shall be deemed Confidential Information of Bleum. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information, unless the receiving party has evidence to prove that the document it receives: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information under a regulation, law or court order (only the minimum extent which required to comply with such regulation or order), but it should issue a written notice in advance to the disclosing party. Upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to appropriate legal damages and/or equitable relief or whatever other remedies might applicable.
16.Audits. You agree us, or agent authorized by us, to audit your use of our Product, in order to make sure that you are using the Product within the scope of the Scope of Use and the provisions of this Agreement. We will send a notice to you about the audit matter 10 days in advance. The audit will be conducted during normal business hours. We will be responsible to all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You shall cooperate with, and provide reasonable help in the audit, at your own cost, if any cost incurred. If you exceed your Scope of Use, we may invoice you for the excessive use of our Products, and you shall pay the invoice promptly. This remedy is excluded to any other remedies available to Bleum at law or equity or under this Agreement. We may decide to share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors when necessary.
17.Term and Termination. The term of this Agreement is the same as your valid License Term or Subscription Term (the “Term”), unless either party decides an earlier termination according to this Agreement. In the case that one party commits material breach of this Agreement, and does not successfully cure it within 30 days of cure period, the other party may terminate this Agreement through a written notice, at any time before the expiration date. Either party may also terminate the Agreement earlier if the other party ceases to operate its obligations of this Agreement, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Bleum, but you will not be entitled to any credits or refunds prepaid, even you have not used the Software or other Services purchased. You (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we provide to you under this Agreement, upon your termination. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 7.7.3 (Indemnity for Customer Data ), 10 (Payment), 11 (Taxes), 12 (No-Charge Products) (disclaimers and use restrictions only), 11 (Restrictions), 12 (License Certifications and Audits), 13 (Ownership and Feedback), 15 (Confidentiality), 17 (Term and Termination), 18.2 (Warranty Disclaimer), 20 (Limitation of Liability), 21 (Third Party Vendor Products), 22 (Dispute Resolution), 23 (Export Restrictions), and 25 (General Provisions).
18.Warranty and Disclaimer.
18.1 Due Authority. Each party represents and warrants that it has the full authority to execute this Agreement. In the case that you are an entity, this Agreement and each Order shall be entered into by your employee or agent who shall be granted all necessary authority by you and so that this Agreement shall bind you to all of the terms and conditions of this Agreement.
18.2 WARRANTY DISCLAIMER. Except as expressly provided herein, neither Party makes, nor receives, any warranty of any kind, express, implied, statutory, including but not limited to, warranties of design, merchantability and fitness for a particular purpose with respect to any Products provided hereunder, or otherwise or arising from a course of dealing or usage of trade practice.
ALL PRODUCTS ARE PROVIDED ON “AS IS” BASIS. BLEUM AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF DESIGN, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY PRODUCTS PROVIDED HEREUNDER, OR OTHERWISE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE PRACTICE. BLEUM SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BLEUM. NEITHER BLEUM NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH. BLEUM DO NOT REPRESENT, WARRANT OR GUARANTEE THAT (A) ANY INFORMATION/DATA/DOWNLOAD AVAILABLE ON OR THROUGH OUR PRODUCTS WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING DESTRUCTIVE PROPERTIES; OR (B) THE PRODUCTS BLEUM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED; OR (C) THE PRODUCTS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR (D) THE PRODUCTS OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA.
19.IP Indemnification by Bleum. Bleum agrees to indemnify, defend and hold the Indemnified you harmless against any Liability arising out of or resulting from claims, causes of action, suits, demands and other legal proceedings of Third Parties as a direct result of any Third Party claim of infringement of any such Third Party’s patent, copyright, trademark or misappropriation of any trade secret related to the Products provided by Bleum and used as authorized under this Agreement, infringes a Chinese or United States patent or registered copyright (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Bleum (including reasonable attorneys’ fees) arising out of a Claim, provided that we have received from you: (a) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund, in the case of Software, the license fee paid by you as reduced to reflect a three year straight-line depreciation from the license purchase date, and in the case of a Hosted Service, any prepaid amounts for the terminated portion of the Subscription Term. Bleum shall have no obligation under this Section or other liability for any infringement or misappropriation claim resulting or alleged: (1) if the total aggregate fees received by Bleum with respect to your license to Software or subscription to Hosted Services in the 12 month period immediately preceding the claim is less than US$50,000; (2) if the Product is modified by any party other than Bleum, and the infringement is caused solely by such modification; (3) if the Product is used in combination with any non-Omnipresent product, software or equipment, and the infringement is caused solely by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of Customer Data (or circumstances covered by your indemnification obligations in Section 7.7.3 (Indemnity for Customer Data)) or any third-party deliverables or components contained with the Products; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a claim without Bleum’s prior written consent. THIS SECTION 19 (IP INDEMNIFICATION BY BLEUM) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY BLEUM UNDER THIS AGREEMENT.
20.Limitation of Liability. UNLESS OTHERWISE PRIVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF, OR DAMAGE TO, DATA, LOST PROFITS OR INCIDENTAL, INDIRECT, COLLATERAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, RE4GARDLESS OF THE FORM OF ACTION OR THE THEORY OF RECOVERY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BLEUM’S AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. THIS SECTION 20 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 14 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 20 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
21.Third Party Vendor Products. Omnipresent or third parties may from time to time make available to you third-party products. If you procure any of these third party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. Bleum does not warrant or support non-Omnipresent products or services, whether or not they are designated by Bleum as “verified” or otherwise, and disclaims all liability for such products or services. If you install or enable any third party products or services for use with Omnipresent products, you acknowledge that Bleum may allow the vendors of those products and services to access your Customer Data. Bleum shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by third party add-on vendors.
22.1 Dispute Resolution; Arbitration. In the event of any dispute or claim arising out of or relating to this Agreement, the parties hereto shall carry out a negotiation with each other at first, and try to find a solution satisfactory to both parties. If the parties do not reach settlement within 60 days, the dispute shall be submitted to the Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center) and subject to the Shanghai International Economic and Trade Arbitration Commission Arbitration Rules. The language of the arbitration shall be English. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
22.2 Governing Law; Jurisdiction. The rights and obligations under this Agreement will be governed by the laws of the People’s Republic of China, excluding its conflicts of law rules. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 22.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules in relevant Chinese laws, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Shanghai, PRC.
22.3 Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 22.1 (Dispute Resolution; Arbitration), either party shall be entitled to seek injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
23.Export Restrictions. The Products are subject to export restrictions by the Chinese government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the People’s Republic of China.
24.Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our website, through your Omnipresent account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, you can choose not to renew the Products you purchased if you do not agree with the change, and continue to use it until expiration. Accepting the updated Agreement is required for No-Charge Products. However, for No-charge Products, if you do not agree to the updated Agreement after it becomes effective, by clicking through the acceptance procedure, you will not be allowed to use that No-Charge Products. For the avoidance of doubt, any individual Order shall be subject to the version of the Agreement in effect at the time the Order is placed.
25.1 Notice. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to:
Attn: Omnipresent Counsel
Cloud-9 Mansion 8F,
1118 West Yan’an Road,
Alternatively, you may send an email to: email@example.com.
Your notices to us will be deemed given upon our receipt. The notice delivery regulations shall be subject to relevant Chinese laws.
25.2 Assignment. Except as otherwise provided in this agreement, neither Party may assign this Agreement in whole or in part, directly or indirectly, without the consent of the other Party; provided, however, that either Party, or its successors or assigns, may assign this Agreement pursuant to a change of control transaction, including a merger with, or sale of all or substantially all of its assets to, a Third Party. Any purported assignment in contravention of this Section shall be null and void. The consent of either Party to any assignment shall not constitute consent to further assignments where consent is required. This Agreement shall be binding on the Parties and their respective successors and assigns.
25.4 Changes. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation).
25.5 Miscellaneous. References to any statutory provisions include any modifications or re-enactments of those provisions. References to “this Agreement” or any other document or agreement referred to in this Agreement mean this Agreement as amended, supplemented, or modified from time to time, and includes the schedules attached to this Agreement. When a reference is made in this Agreement to Sections, such references shall be to a Section to this Agreement unless otherwise indicated. The words “include”, “including” and “among other things” shall be deemed to be followed by “without limitation” or “but not limited to” whether or not they are followed by such phrases or words of like import. The headings contained in this Agreement have been inserted for convenience of reference only and shall not be relied upon in construing this Agreement. Any term used in the singular shall be interpreted as including the plural and vice versa, unless the context clearly indicates otherwise. The word “will” shall be construed to have the same meaning and effect as the word “shall” and vice versa. The word “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or”. Neither Party shall be deemed the draftsman of this Agreement for the purpose of the rule of contra proferentem.