Business Agreement *
EFFECTIVE DATE: JULY 1, 2021.
THIS AGREEMENT is between OMNYWAY and COMPANY. This Agreement governs access to and use of the Omnyway Service. By clicking "I agree," signing the contract for the Omnyway Service, or using the Omnyway Service, the Company agrees to this Agreement.
If you are agreeing to this Agreement for use of the Omnyway Services by Company, you are agreeing on behalf of Company. You must have the authority to bind Company to these terms, otherwise you must not sign up for the Omnyway Services.
1.1. The Agreement governs access to, and use of, the Omnyway Services developed by Omnyway for use by tenants of Brookfield. Company and its End Users may access and use the Omnyway Services in accordance with the Agreement
1.2. Omnyway will setup Company in the Omnyway Service and make commercial reasonable efforts to get all requisite authorizations and approvals from Omnyway Partners involved that are needed to allow use of Omnyway Service at Company Locations, contingent on Company providing any material needed for aforesaid approval. The Omnyway Partners have the right to approve or reject Company for the use of Omnyway Service at Company Locations based on the application for approval made by Omnyway. In case the Omnyway Partner rejects the application for approval made by Omnyway on behalf of Company for use of the Omnyway Service, then this agreement will no longer cover provision of the Omnyway Service at Company Locations.
1.3. If required, Omnyway will provide Merchant Cards issued by a Omnyway Partner and distributed by Omnyway to Company for use in processing transactions through Omnyway Service.
1.4. Omnyway Application will list Company Location Information. Omnyway may include or modify all or part of Company Location Information as needed for the purposes of listing in the Omnyway Application.
1.5. Omnyway will showcase Company Material within the Omnyway Application. Omnyway may not use any Company Material within the Omnyway Application user interface, without the prior written consent of Company. Omnyway will not alter, add to, subtract from, or otherwise modify any Company Materials. If Omnyway wishes to alter or otherwise modify Company Materials, then Omnyway must obtain prior written consent from Company for such alteration or modification.
1.6. Limit 5 Associate Level Logins to Omnyway Service per Company. Limit 1 Retailer Level login to Omnyway Service per Company.
1.7. No limits on number of VISX Live or VISX Media events during the Term per active Associate Level or Retailer Level login. No limit on number of viewers of VISX Live or VISX Media events created by Company. No limits on distribution of VISX Live and VISX Media links across email, text, social media, web and other similar outreach channel by Company.
1.8. Unlimited access to VISX School – Omnyway’s online repository of FAQ, training material and videos on Omnyway Service and live stream shopping.
2. Company’s Obligations.
2.1. Company agrees to provide all documents and information requested by Omnyway Partners for establishing the legal status of Company’s business and any other materials that are reasonably requested by Omnyway and Omnyway Partners for the purposes of establishing that Company is not engaged in unqualified or unacceptable business practices including but not limited to money laundering, gambling, pornography, prostitution, illegal drugs, etc.
2.2. In the case that Merchant Cards are provided to Company, and to ensure the security and proper usage of Merchant Cards, Company shall always comply with the following Merchant Card Guidelines, as may be updated from time to time by Omnyway and Omnyway Partners
2.2.1. Securing the physical card. Although precautions have been put in place to make the Merchant Card only have value during a payment transaction, it remains good practice to treat the Merchant Card as Company would any other payment device. The physical Merchant Cards will be assigned to Company Active Locations, for use only at that location’s physical address, or at an authorized address for that Company Active Location. The physical Merchant Card should be available solely for Company authorized sales associates during the payment transactions. It should be under direct control of Company authorized sales associates or secured in a locked location when not in use. The Merchant Cards must not be left out or unattended. Merchant Cards do not need to be assigned to a specific Company associate or Company Point of Sale register. Merchant Card is the property of Omnyway and must be returned to Omnyway upon request.
2.2.2. Discover Network. The Merchant Cards run on the Discover Network. In order to accept payments through the Omnyway Service using Merchant Cards, Company agrees that it supports cards that run on the Discover Network as a payment method both at Company Location.
2.2.3. Number of Cards. Omnyway provides an agreed upon number of Merchant Cards to each Company Location.
2.2.4. Lost or damaged Merchant Cards. Any lost or damaged Merchant Cards must be reported to Omnyway immediately at the following phone number, so that it can be deactivated: +1 (415) 915-9990 extn 888. Company should work with their contact at Brookfield to get access to replacement Merchant Cards.
2.2.5. Transaction Limitations. Any limitations on transactions conducted by Merchant Cards imposed by Financial Partners, as may be updated from time to time by Financial Partners
2.2.6. Rules and Regulations. Other than current laws, Company agrees to comply with standards, rules, and regulations (as applicable) with respect to use of payment cards.
2.2.7. Merchant Card Handling. Company shall be solely responsible for the use, misuse, destruction, access or loss of each Merchant Card.
2.3. In the case that Merchant Cards are provided to Company, Company appoints Omnyway and Omnyway Partners as its limited payment collect agent solely for the purpose of accepting funds from payors on behalf of Company. Company agrees that payment made by a payor to Omnyway, and Omnyway Partners shall be considered the same as a payment made directly to Company, and Company will make the purchased goods or services available to the payor in the agreed-upon manner as if Company had received the payment directly from the payor. In the case that Merchant Cards are provided to Company for processing payments at Company Point of Sale, Omnyway and Omnyway Partners will only initiate the Merchant Card authorization process upon receiving authorization from the Payment Provider. In the absence of such authorization from the payor’s Payment Provider, Omnyway and Omnyway Partners shall not authorize the Merchant Card transaction and such transaction will be declined. Once the Merchant Card is authorized for the transaction by Omnyway and Omnyway Partners, the transaction will be approved, and Company will be paid through normal payment card settlement processes. In accepting appointment as the limited payment collect agent of Company, Omnyway and Omnyway Partners assume no liability for any acts or omissions of Company. Company shall maintain all receipts/records of transactions on Merchant Cards provided by Omnyway to Company and will make physical and/or electronic copies of receipts/records available to Omnyway on a regular interval.
2.4. Company will honor all promotions, discounts and deals and perform all services as advertised or offered in Company Materials provided to Omnyway and displayed in the Omnyway Application. If Company anticipates not being able to honor a deal or perform a service advertised on the Company Materials displayed on the Omnyway Application, Company must provide at least thirty (30) days prior written notice of its intention to discontinue such promotion to Omnyway, so that Omnyway may remove such information from the Company Materials displayed in the Omnyway Application.
2.5. Company agrees to host events at least 2 times a calendar month during the Term of the Agreement. Company also agrees to promote the events created using the Omnyway Service on Company’s marketing channels.
2.6. Company agrees to provide all Company Material requested by Omnyway for the proper setup and utilization of Omnyway Service. Company will also provide a product catalog for ingestion into the Omnyway Application and for use by Company while creating events using the Omnyway Service.
3. License to Omnyway Service.
Subject to the terms and conditions of this Agreement and the payment of all applicable Commissions by Company, Omnyway hereby grants to Company a nonexclusive, non-transferable, revocable license to use the Omnyway Service solely by Company Locations during the Term. The term of this license shall expire upon the expiration or termination of this Agreement.
4. Trademark License.
Omnyway grants to Company a limited, non-exclusive, non-transferable, non-sublicensable, and royalty-free license during the Term to Omnyway Marks designated by Omnyway from time to time to display such Omnyway Marks at Company Locations solely to advertise Company’s participation in the Omnyway Service. Company shall use the Omnyway Marks solely in accordance with Omnyway’s trademark usage guidelines and quality control standards as provided by Omnyway from time to time. All uses of Omnyway Marks, and all goodwill associated therewith, shall inure solely to the benefit of Omnyway. Company shall promptly cease any such use of Omnyway Marks if notified by Omnyway that such use does not comply with Omnyway’s then current trademark usage policy.
5. License to Omnyway.
Subject to the terms and conditions of this Agreement, Company hereby grants to Omnyway a non-exclusive, non-transferable, royalty-free license to reproduce, perform, display, transmit, and distribute Company Location Information and Company Materials in the Omnyway Application as part of the Omnyway Service. This license shall expire upon the expiration or termination of this Agreement.
6. Intellectual Property.
6.1. Reservation of Rights. Omnyway retains all right, ownership, and interest in the Omnyway Application, and the Omnyway Service and in the copyright, trademark, patent and other intellectual property therein. Nothing in this Agreement shall be construed to grant Company any rights, ownership or interest in the Omnyway Service or Omnyway Marks, or in the underlying intellectual property rights, other than the rights to use the Omnyway Service and Omnyway Marks, as set forth in Sections 3 and 4. Company retains all right, ownership, and interest in the Company Materials, and in any copyright, trademark, and other intellectual property in the Company Materials. Nothing in this Agreement shall be construed to grant Omnyway any rights, ownership or interest in the Company Materials, or in the underlying intellectual property rights, other than the rights to use the Company Materials granted under the license, as set forth in Section 5.
6.2. Suggestions. Omnyway may use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions on the Services that Company, End Users or any audience attending events using the Omnyway Service, may send Omnyway or suggest to Omnyway by any means without any obligation to Company. Omnyway may solicit customer satisfaction feedback from Company, Company’s End Users and any audience attending events hosted using the Omnyway Service, through polls, surveys, or any other feedback collection mechanisms.
7. Commissions and Payments.
7.1. Commission. In exchange for Company’s utilization of and participation in the Omnyway Service, and for Omnyway’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Omnyway an 8% Commission on the total US Dollar value of transactions processed for Company using the Omnyway Service.
7.2. Automatic Deduction of Commissions. In the case that Omnyway is able to deduct commissions directly from Payment Provider, then Omnyway will receive such commissions due at the time of settlement from Payment Provider to Company.
7.3. Payment of Commissions without Automatic Deduction. In the case that Merchant Cards are provided to the Company for processing payments, Company shall pay all Commissions due to Omnyway within 7 days of the date of invoice from Omnyway. Omnyway will provide a means to automatically collect payments from Company as an option. If Company opts for this option, then it is Company’s responsibility to set up a payment method that will be used for the collection of Commissions, and the following will apply
7.3.1. Frequency of Automatic Payments: Commissions will be collected by Omnyway every month using the payment method on file.
7.3.2. Third Party Automatic Payment Collection Service: Company acknowledges that Omnyway may use a third-party automatic payment collection service for purposes of setting up the collection of Commissions from Company, and that Company will comply with all terms and conditions set forth by this third-party payment service in order to set up, initiate, continue as well as terminate the payment collection
7.3.3. Automatic Payment Failure: If Company provided payment method included in Omnyway’s automatic payment system is declined or unable to be processed for any reason, then Company will be contacted by phone or email to help rectify the issue. Omnyway may at its discretion restrict Company’s access and participation in the Omnyway Service if Company provided payment method fails. Omnyway will provide 72 hours for Company to fix Company payment method provided or setup a new payment method, after which the Omnyway Service will be completely suspended for Company.
7.3.4. Changing Automatic Payment: If Company would like to change the automatic payment method, including for example, making a change from one credit card that was initially selected to another credit card or bank account, then Company is responsible for authorizing the new payment method with the Automatic Payment Collection service provider. Any changes are subject to approval by the Automatic Payment Collection service, and once approved then previously authorized payment method will no longer be charged for collection of Commissions and Fees.
7.4. Transaction Records. Omnyway shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Omnyway by Company. Company shall be given reasonable access to these records upon request.
7.5. Deficiency In Payment. Any deficiency in the payment of Commissions (i.e. between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Omnyway) in any period or periods shall be remedied by Company within 14 days of Company’s receipt of Omnyway’s notice regarding such deficiency in payment.
7.6. Returns and Refunds. If Company chooses to allow merchandise to be returned for Company issued credit, cash, or refund through the Omnyway Service, then such return and payment shall be the sole responsibility of Company. Disagreements between the shopper and the Company in regard to returns are solely the responsibility of the Company, and Omnyway is not liable. For the avoidance of doubt, refunds provided by Company for returned or defective merchandise that are not processed through the Omnyway Service, shall not affect the amount of Commissions payable to Omnyway for the sale of such merchandise. In the case that a refund gets processed through the Omnyway Service, then no Commission will be due to Omnyway, for that particular refunded transaction.
7.7. Commissions on Termination. In the event that this Agreement is terminated for any reason prior to the end of the Term, all Commissions for past sales for any period shall become immediately due and payable. Company shall pay in full all Commissions owed to Omnyway within ten (10) days of the termination of the Agreement. In addition, all automatic recurring payments will be terminated at that time by Omnyway.
7.8. Taxes. All Commissions collected by Omnyway are exclusive of sales, use, value added, and similar taxes, which are the responsibility of Company.
8. Representations and Warranties.
8.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that, (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and to perform its obligations and grant the rights and licenses it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
8.2. Company’s Representations and Warranties. Company represents and warrants to Omnyway that, (i) Company provided Company Location Information, Company Materials, Company’s products and services, or the manufacture, marketing, sale, and use of the products and services, or anything in or contemplated by this Agreement, does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or other rights of any third party; and (ii) Company’s products and services are free of defects in design and conform with the specifications and documentation provided with the products and services and will be free from defects in material and workmanship. Omnyway may pass through to end users or customers all warranties granted by Company under this Agreement.
8.3. Omnyway’s Representations and Warranties. Omnyway represents and warrants to Company that it will comply with all applicable laws in the course of its performance of this Agreement, including without limitation laws respecting data privacy, data protection and trans-border data flows.
8.4. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
9.1. Indemnification by Company. Company shall indemnify and defend Omnyway Indemnified Parties from and against any and all losses incurred by each Omnyway Indemnified Party resulting from any suit, claim, action, or proceeding brought against such Omnyway Indemnified Party: (i) based on an allegation that any of Company’s products or services, Promotional Materials or any part thereof, constitute an infringement or misappropriation of a third party’s intellectual property rights; (ii) relating to facts that, if true, would constitute a breach by Company of any representation, warranty, covenant, or obligation under this Agreement; (iii) relating to use of any products, or services purchased in a Company Location by any customer;, and (iv) resulting from the unlawful use, misuse, fraud, tampering, destruction or unauthorized access of any Merchant Card or the Omnyway Service by Company or its customers or agents.
9.2. Indemnification by Omnyway. Omnyway shall indemnify, defend, and hold harmless Company Indemnified Parties from and against any and all losses incurred by any Company Indemnified Party resulting from any suit, claim, action or proceeding brought against such Company Indemnified Party by a third party based on an allegation that the Omnyway Service constitutes an infringement or misappropriation of such third party’s intellectual property rights.
10.1. Confidential Information. Each Party may from time to time during the Term of this Agreement disclose to the other Party certain Confidential Information. The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party.
10.2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
10.3. Exceptions. The Receiving Party’s obligations under this Section 14 will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (x) approved in writing by the Disclosing Party, (y) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (z) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing (to the extent permissible under applicable law) and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
10.4. Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 14 (d).
11.1. Agreement Term. This Agreement will remain in full force for the Term.
11.2. Extension via Entering Into a Standard Agreement with Omnyway. At the end of the Term, Company will have the option to enter into a Standard Agreement with Omnyway, that will allow Company to continue to participate in Omnyway Services under the terms of the Standard Agreement.
11.3. Effect of Expiration. Upon completion of the Term of this Agreement:
11.3.1. All licenses granted under this Agreement shall automatically terminate, and Company shall immediately discontinue all use of the Omnyway Service, Merchant Cards and Marks and any other materials provided by Omnyway. Upon Omnyway’s written request, Company shall promptly provide Omnyway with written certification of such deletion.
11.3.2. All Commissions which previously accrued and that would have been payable, shall become immediately due and payable.
12.1. Of End User Accounts by Omnyway. If Company’s End User: (a) violates the Agreement; or (b) uses the Services in a manner that Omnyway reasonably believes will cause it liability, then Omnyway may request that Company suspend or terminate the applicable End User account. If Company fails to promptly suspend or terminate the End User account, then Omnyway may do so.
12.2. Security Emergencies. Notwithstanding anything in the Agreement, if there is a Security Emergency, Omnyway may automatically suspend use of the Services. Omnyway will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.
13. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND BREACH OF CONFIDENTIALITY: (A) NEITHER PARTY NOR ITS REPRESENTATIVES IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, AND (B), IN NO EVENT SHALL THE TOTAL MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE SUM OF THE AMOUNT OF COMMISSIONS PAID AND PAYABLE TO OMNYWAY DURING THE TERM OF THIS AGREEMENT
14.1. Relationship of Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
14.2. Governing Law; Venue. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of California, without regard to conflicts of law principles that would cause the application of laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Santa Clara County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
14.3. Terms Modification. Omnyway may revise this Agreement from time to time and the most current version will always be posted on the Omnyway Service website. If a revision, in Omnyway's sole discretion, is material, Omnyway will notify Company (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Omnyway's blog or terms page, and Company is responsible for checking these postings regularly. By continuing to access or use the Services after revisions become effective, Company agrees to be bound by the revised Agreement.
14.4. Assignment. Company shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Omnyway’s prior written consent.
14.5. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
14.6. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereinafter shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.7. Notice. Notices must be sent via email, first class, airmail, or overnight courier and are deemed given when received. Notices to Company may also be sent to the applicable account email address and are deemed given when sent. Notices to Omnyway must be sent to Omnyway Legal at firstname.lastname@example.org, with a copy to Omnyway, Inc., 548 Market Street #20416, San Francisco, CA 94104-5401, attn.: Legal Department.
14.8. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
14.9. Force Majeure. Except for payment obligations, neither Omnyway nor Company will be liable for inadequate performance to the extent caused by a condition that was beyond the Party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
14.10. Entire Agreement. This Agreement, together with the Appendices constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter
The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural
"Acceptable Use Policy" means the Omnyway Service acceptable use policy set forth at the following link, or other link that Omnyway may provide: https://www.visx.live/omnyway-visx-acceptable-use-policy/
“Agreement” means this Business Agreement entered into by the Parties and made available only to Brookfield Mall tenants, alongside any support and marketing provided by Brookfield and Omnyway to Company for promoting Company’s use of Omnyway Service
“Brookfield” refers to Brookfield Properties Retail, Inc., a Delaware Corporation, with headquarters at 350 N Orleans St., Suite 300, Chicago, IL 60654
“Company” means the organization agreeing to the terms of this Agreement
“Company Indemnified Party” mean collectively Company and its affiliates, and each of its and their respective officers, directors, employees, agents, contractors, permitted successors and permitted assigns (each, a)
“Company Location” refers to the physical location operated and managed by Company, that is a tenant of Brookfield, and has been authorized to run the Omnyway Service and can use the Omnyway Service to process transactions
“Company Location Information” means Company name, Company logo, details of Company Locations, such as Address, Phone numbers, Email, Other Contacts, Social Media IDs, and Operating hours, as well as any other information deemed necessary for the proper use of the Omnyway Service by Company
“Company Material” means any graphic, textual or other materials regarding Company products or services
“Confidential Information” means any non-public business, technical, marketing, financial, employee, planning, and other confidential or proprietary information
“Disclosing Party” means the Party disclosing Confidential information to Receiving Party
“End User” means any Retailer or Associate Level login granted to the Company for accessing the Omnyway Service
“Merchant Card” means the Omnyway provided Discover Card, issued by a Omnyway Partner
“Party” refers to either of Omnyway or Company, and collectively “Parties”
“Omnyway” refers to Omnyway, Inc., a Delaware corporation, with headquarters at 2955 Campus Dr. Suite 110, San Mateo, CA 94403
“Omnyway Application” means collectively the VISX Dashboard and the VISX Shopper App
“Omnyway Indemnified Party” means collectively Omnyway, Omnyway Partners and each of its and their respective parent, subsidiaries and affiliates and its and their respective officers, directors, employees, contractors and agents permitted successors and permitted assigns
“Omnyway Marks” means collectively the Omnyway trademarks, design, logo, and signage as well as VISX trademarks, design, logo, and signage
“Omnyway Partners” refers to financial and payments partners of Omnyway that allow for the processing of payments through the Omnyway Service
“Omnyway Service” refers to one or more of the following Omnyway products for use by tenants of Brookfield: VISX Live, VISX Media
“Omnyway Standard Agreement” means an agreement by Company to participate in the Omnyway Service under the standard Omnyway fee and commission structure with no fee coverage, incentives, support or marketing provided by Brookfield. Omnyway Standard Agreement terms or conditions are not covered under this Agreement, and signing this Agreement does not construe participation in or agreement to the Terms and Conditions of the Omnyway Standard Agreement.
“Receiving Party” means the Party receiving the Confidential information from Disclosing Party
“Term” means the term of the Agreement, which is effective the date the Agreement is signed (by clicking “I agree’, signing the contract of the Omnyway Service, or by starting to use the Omnyway Service) and continues until Dec 31st, 2021.
“VISX Direct” refers to the Omnyway Service allowing for 1 on 1 bi-directional video session with Company’s clients and allowing the Company’s client to purchase items while in the 1 on 1 session
“VISX Media” refers to the Omnyway Service allowing for the conversion of any supported image or video into shoppable media content for Company’s clients to purchase from across any supported digital distribution channel
“VISX Live” refers to the Omnyway Service allowing for the live broadcast to multiple clients of the company to view simultaneously, and allowing the clients to purchase items while viewing the live stream.