EFFECTIVE DATE: 1/08/2020, LAST UPDATED: 5/10/2021
Each party represents that it has validly entered into the Agreement and has the legal power to do so, and represents and warrants to the other that (a) the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of the Agreement; and (c) the execution, delivery, and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound, or any applicable law or regulation.
In the event of any conflict between the Agreement and any Addendum thereto, the provisions of the Agreement take precedence.
Parties to the Agreement are bound by the following provisions.
The following terms shall have the meanings specified below:
“Account,” “License” – means any account created by the Customer subscribing to Services.
“Agent” means a named user(s) in the Service employed by the Customer to operate Services for or on behalf of the Customer.
“Confidential Information” means all information, whether written or oral, provided by the disclosing party to the receiving party and which (i) is known by the receiving party to be confidential; (ii) is marked as or stated to be confidential.
“Company,” “We”, “Us” (or “Provider” in the Data Protection Addendum) means Omnitok and/or Pervasive Mind. The worldwide corporate headquarters and principal office of the Company shall be Roncesvalles 6144, Las Condes, Santiago, Chile.
“Customer,” “You” (or “Client” in Addendums to the Agreement) means any user, person, or entity who creates an account and uses Services supplied by the Company under the Agreement.
“Documents” means any relevant document that is, or may be, related to the Agreement, including, but not limited to, applicable Addendum(s).
“End-User” means any person with whom the Customer or its Agents interact with while using Services.
“Personal Data/Personal Information” means personal data within the meaning of the Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (The General Data Protection Regulation – GDPR), processed by Omnitok (or a Sub-Processor) on behalf of the Customer pursuant to, or in connection with, the Agreement.
“Services” means the Omnitok’s services and products supplied by the Company to the Customer under the Agreement.
“Sub-Processor” means entities in which software, goods, or services are used by the Company in order to run a business, in particular, to provide Services.
“Third Party Service Provider” means any third party that collects, process, and/or uses Personal Information under the instruction of Pervasive Mind including any consultant, representative, advisor, or independent contractor (including Sub-Processors) who renders services to the Company, a subsidiary, or an affiliate.
“Visitor” means any person who is visiting/browsing any website where Omnitok Services are installed.
All terms derived from General Data Protection Regulation, such as “Commission,” “Controller,” “Data Subject,” “Member State,” “Personal Data,” “Personal Data Breach,” “Processing,” or “Processor,” should be understood in line with their regular meaning coming from the regulation.
- Omnitok is a Service created and provided by Pervasive Mind.
- On principles set out in these Terms and Conditions, Pervasive Mind. renders the following Services: Omnitok via https://omnitok.chat, https://omnitok.com or via mobile applications.
- Customer’s access to the Internet is not the subject of the Agreement. The Customer bears sole responsibility for the functionality of its Internet access, including the transmission paths and its own hardware.
- Please keep in mind that Pervasive Mind may modify the provisions of the Agreement, and only those currently visible on our website are up to date and binding. However, modifications shall not adversely affect the main provisions of the Agreement, such as terms of payment or termination of Services. Such changes shall take place with prior explicit notification to the Customer at least thirty (30) days before the change implementation and, if not clearly rejected within (seven) 7 days after the notification, are treated as accepted. Therefore, we encourage you to periodically familiarize yourself with the currently effective Terms and Conditions version on our Internet websites.
- Further use of Services, after explicit notification of changes by Pervasive Mind and in the absence of Customer rejecting such changes, after additional modifications in the Terms and Conditions have been implemented, shall constitute the consent to accept these modifications. Refusal to accept these modifications shall preclude the Customer from using the Services.
- Pervasive Mind provides the Customer with access to ordered software available on the following websites: https://omnitok.chat, https://omnitok.com for the term specified in the Agreement. The software used by the Customer in accordance with its application and purpose defined in the Agreement, available on the following websites: https://omnitok.chat, https://omnitok.com, and provided by Pervasive Mind shall be deemed Services.
- The usage of any new Services available on the aforementioned websites, after the Customer has accepted the Terms and Conditions, shall be subject to its provisions.
- Pervasive Mind is exclusively entitled to add, change, remove, and adapt the functionality, the use, subject matter, and the range of particular Services, including the software provided, its contents, and its nature; as well as to cease rendering the Services, in particular, in the event of further development of the Services offered by the Company.
Access and the use of Services
- Omnitok Services are exclusively designated for business use and must be used only in accordance with their contractual intended purpose, aim, and the Agreement. Detailed guidelines concerning the proper use of the Services are described in the Acceptable Use Policy section below.
- Omnitok Services can be accessed solely by logging in to the Service on a particular website. Pervasive Mind provides the Customer with the login data required for the identification and authentication of named users in the Service (except Services in which Agents are not required). The Customer is not permitted to transfer login data to third parties other than defined. New and/or additional users will be notified by the Customer to Pervasive Mind in advance so that individual login data can be provided to each user and, if necessary, the fee calculation can be adjusted.
- Every Customer is assigned a particular password and login (or other credentials) which must not be used by third parties without the Customer’s explicit consent. The Customer is solely responsible for the proper protection and storage of their password and login (credentials). The login data for the Services may not be passed on or used by several persons at the same time. Access to, and use of, the Services is restricted to the specified number of individual Agents permitted under the Customer subscription to the applicable Service. The Customer agrees and acknowledges that each Agent’s credentials shall only be used by one (1) designated individual Agent. The Customer further agrees and acknowledges that an Agent’s credentials cannot be shared or used by more than one individual, but that Agent’s credentials may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services. The Customer and its Agents are responsible for maintaining the confidentiality of all of the Agent credential information for the Customer Account.
- The Customer must be at least 16 years of age to be able to register and to access his or her Account. Pervasive Mind does not knowingly provide Services to any person under the age of 16.
- The Customer undertakes to use the Services exclusively for its own purpose and in a manner consistent with the currently effective law and the Agreement.
- The Customer is fully responsible for any and all contents, phrases, and entries (“Input”) added to the network in connection with the use of offered Services. Pervasive Mind reserves the right to use the Input in the event of fraudulent or illegal activity of the Customer.
- The Customer is responsible for compliance with the provisions of the Agreement by Agents and End-Users and for any and all activities that occur under Your Account. Without limiting the foregoing, You are solely responsible for ensuring that the use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations, as well as any and all privacy policies, agreements, or other obligations the Customer may maintain or enter into with Agents or End-Users.
- The Customer understands and has become familiar with the technical requirements necessary to use the Services and has no objections in respect thereof. The Customer is aware of risk and threats connected with electronic data transmission.
- Pervasive Mind reserves the right to access Customer accounts for technical and administrative purposes and for security reasons. The information obtained in such a manner shall not be processed or made available to any third parties unless required by the Customer or the provisions of law.
- The Customers of Omnitok Service declares that they will not use the Service in a way that may constitute a violation of laws.
- Violation of the Agreement, applicable laws, or generally accepted norms and rules shall lead to the termination of the Agreement.
- The Customer is responsible for providing valid and current Account information and the Customer agrees to promptly update its Account information, including payment information, with any changes that may occur (for example, a change in the Customer billing address or credit card expiration date).
Acceptable Use Policy
- This Acceptable Use Policy applies to Omnitok Services accessible through https://omnitok.chat, https://omnitok.com, mobile versions, and successive URLs related to the domain or subdomain.
- The Customer understands and agrees that Pervasive Mind shall have no responsibility or liability whatsoever for any and all data and content provided by the Customer. In particular and without limitation, the Customer may not:
- Hinder the functioning of Services, especially in the form of reverse engineering or hacking the Services, attempting to gain unauthorized access to the Services (or any portion thereof), or related systems, networks, or data;
- Use the Services in a way contradictory to the Agreement and causing a real danger for Pervasive Mind or Omnitok. For example, using the Services to generate or send unsolicited communications or communication judged to be spam, or otherwise cause Pervasive Mind. to become impaired in its ability to provide the Service;
- Misrepresent or mask the origin of any data, content, or other information you submit. For example, by “spoofing,” “phishing,” manipulating headers or other identifiers, impersonating anyone else, or access the Services via another Customer’s account without their permission;
- Use the Services in a way which violates the rights of other individuals or laws;
- Promote or advertise products or services different from the one belonging to the Customer without legal basis;
- Sublicense, license, sell, lease, rent, or otherwise make available the Services or provide access to any third party;
- Copy, translate, disassemble, decompile, reverse engineer, or otherwise modify the Services in whole or in part, or create derivative works based thereon;
- Use the Services in any manner that is contrary to applicable law, including, without limitation, the unlawful usage of data, and transmitting information or data that is unlawful or infringes any copyright, patent, trademark, trade secret, or other intellectual property rights of others;
- Endanger, interfere, compromise or circumvent the privacy, use, and/or security of the Service, including, without limitation, submitting data or content that may contain viruses or other harmful components; or
- Breach any duty toward, or rights of, any person including, without limitation, rights of publicity or privacy, or take actions that can otherwise result in consumer fraud, product liability, tort, breach of contract, injury, or damage or harm of any kind to any person;
- Use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components;
- Allow or encourage anyone else to commit any of the actions listed above.
- As a condition of using the Services, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. The Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. The Customer shall (a) as required by applicable law, provide notice to its customers (End-Users) and Agents, as well as obtain consent (if required) for processing and transferring Agents and End-Users Personal Data to the Company and its Third Party Service Providers; (b) be responsible for its employees, representatives, End-Users, and Agents that have access and use the Services; (c) comply with any limitations or restrictions set forth in the Agreement, and (d) use the Services only in compliance with applicable law.
- All information, data, text, software, graphics, commentary, video, messages, or any other materials submitted by using the Service, (collectively, “Data”), is the property of the Customer. The Customer is solely responsible for Data collected, submitted, and generated by the Services. Pervasive Mind is not responsible for the way the Customer uses the Services and Data.
- The Customer acknowledges and agrees that in providing the Services, the Company will engage Sub-Processors to Process the Personal Data, including, and without limitation, any Personal Data within Service Data pursuant to the Agreement within the European Economic Area, the United States, and in other countries and territories. Any third-party service providers utilized by Pervasive Mind will only be given access to the Customer Account as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the Company standards; and (b) their agreement to comply with the data transfer restrictions applicable to the Company. The names of all current Sub-Processors used for the Processing of Personal Data under the Agreement are set forth on the Company’s website.
- The Customer is responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, browser software that supports protocols used by the Company and to follow the Company’s procedures for accessing Services. We are not responsible for notifying Customer, Agents, or End-Users of any upgrades, fixes, or enhancements to any such software, or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including, but not limited to, the Internet) which are not owned, operated, or controlled by the Company. We assume no responsibility for the reliability or performance of any network connections as described in this section.
- The Customer shall prevent unauthorized access by third parties to the Service and shall also oblige its employees and Agents to comply with this obligation.
Trademarks and Intellectual Property
- “Omnitok” is a registered trademark and is therefore subject to national, as well as international, protection.
- Pervasive Mind. states that it has rights to intangible assets in the form of a graphic project of offered services and software, website layout, and computer software, as well as to all Company signs, symbols, and trademarks used within its scope of business activity.
- The Pervasive Mind websites listed above and all information, content, material, graphics, products (including any software), website addresses, and layouts and services included on or otherwise made available to the Visitors and the Customer through the aforementioned websites are its exclusive property of Pervasive Mind. and are protected under applicable law.
- The Pervasive Mind websites and all information, content, materials, products (including any software), website addresses, and layouts and services included on or otherwise made available to the Customer through the aforementioned websites are provided on a “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and the Company, to the maximum extent permitted by applicable law, expressly disclaims any and all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. The Customer acknowledges that the Company does not warrant that the Services will be uninterrupted, timely, secure, error-free, or free from viruses or other malicious software, and no information or advice obtained by you from us or through the Services shall create any warranty not expressly stated in the Agreement.
- Customer grants to Pervasive Mind and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer, Agents or End-Users relating to the operation of Pervasive Mind or its affiliates’ services.
- All rights, title, and interest in and to the Services and all hardware, Software, and other components of, or used to provide, the Services, including all related Intellectual Property Rights, will remain with Pervasive Mind and its affiliates and belong exclusively to pervasive Mind and its affiliates.
- The Customer shall indemnify, defend, and hold harmless Pervasive Mind, from and against any and all losses, damages, demands, claims, actions, liabilities, fines, penalties, and related expenses (including reasonable legal fees) asserted against or incurred by Pervasive Mind. that arise out of, or result from, the Customer data and in relation to any and all claims related to the infringement of any patent, copyright, trademark, or trade secret right, or other intellectual property rights, private right, or any other proprietary or personal interest of any third party violated by the Customer data. The Customer data is any and all data inserted by the Customer and/or created in the Pervasive Mind’s Service for the term of the Agreement.
- Prior written consent of Pervasive Mind. is required for any not permitted business and non-business use of offered Services. Such consent is required, in particular, when disseminating and publicizing particular elements (e.g. photos, films, texts) in other Internet services/websites, printed publications, books, multimedia presentations and in other electronic media, as well as for the disposal or use of its work (adaptations, alterations, modifications).
- Unauthorized lending, sale, or granting of further licenses and sublicenses to the offered products and services by the Customer, or any other entity or person, without the express consent of Pervasive Mind is prohibited. Such acts are not deemed to be the proper use of Services.
- The Customer must not modify or change the purpose and use of offered Services. Misleading others as to the existence of cooperation, association, relationship, or acting on behalf of Pervqasive Mind is prohibited.
- The use of offered Services available on the websites listed above is free of charge for the first several weeks depending on the Services (free trial period).
- After the free trial period ends, if the Customer wishes to continue using the Services, the Customer will be requested to make a payment according to the currently effective price list placed on the individual website.
- All payments shall be non-cash transactions, conducted electronically by external professional entities. The Customer acknowledges and agrees that Pervasive Mind shall send invoices and payment reminders exclusively by electronic means.
- Lack of payment means resignation from the provided Services.
- The receipts for all payments will be provided electronically and stored in the product as PDF files.
- The Customer is responsible for providing complete and accurate billing and contact information to the Company and notifying the Company of any changes to such information.
- The Customer shall be given a 14-day period notice of all changes in the price list.
- In addition, Pervasive Mind may change the remuneration with prior notice, including, without limitation, in the event of further development and/or the expansion of the Services offered by Pervasive Mind.
- Unless expressly agreed otherwise, all amounts stated in the Agreement or the price list are exclusive of all duties or taxes. The Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, or charges of any kind imposed by federal, state, or local governmental entities on amounts payable by the Customer.
- Regardless of the billing cycle, the Company provides no refunds, no right of set-off, or credits for unused time of the Services, or plan downgrades if you decide to close, downgrade, or suspend your account before the end of your subscription period.
- There will be no exceptions in order to treat all Customers equally and to keep our administrative costs low for the ultimate benefit of our Customers.
- Details for the trial account, paid subscription, and canceling the account are as follows:
- Trial Services
- After signing up, the Customer gets a new, fully-functional trial account. Use of Trial Services is subject to the Terms and Conditions of the Agreement. Free Trial Services are provided to the Customer without charge and are valid for several weeks (depending on Services), because we want the Customer to test the Services in its own business environment and get to know Services well before the Customer makes a decision about the subscription. During a trial period, the credit card is not required;
- The free Trial Services are provided “as-is” and without any warranty set forth in the Agreement, and, in addition, the Company does not represent or warrant to the Customer that: (a) Customer’s use of the free Trial Services will meet Customer’s requirements, (b) Customer’s use of the free Trial Services will be uninterrupted, secure, or free from error, and (c) usage data provided through the free Trial Services will be accurate;
- The Customer agrees that the Company will not be liable to Customer or any third party arising out of, or in connection with, free Trial Services. In particular, the Company shall have no indemnification obligations, nor liability of any type, with respect to the free Trial Services unless such exclusion of liability is not enforceable under applicable law, in which case the Company’s liability with respect to the free Trial Services shall not exceed $1,000.00;
- Notwithstanding anything to the contrary in sections ii. and iii. above, the Customer shall be fully liable under the Agreement to the Company for any damages arising out of Customer’s use of the free Trial Services, any breach by Customer of the Agreement, and any of Customer’s indemnification obligations hereunder.
- Paid subscription
Once the Customer decides to subscribe, we need the Customer to provide its credit card details, however, we will not charge the Customer immediately after submitting its valid details, but upon the end of its free trial. We do not offer refunds on already processed payments – this policy is the same for all Customers – and the Customer is responsible for all charges in its subscription.
- Trial Services
- The Agreement shall be concluded for the term specified by the Customer (Subscription Period). The term of the Agreement shall automatically renew for additional periods equal to the expiring Subscription Period unless the Customer closes its account or either Party terminates the Agreement.
- The Customer is responsible for closing its account and may close it at any time. Account closing means that the further use of Services with the use of the current password and login shall no longer be possible and after closing the Customer Account, it will stop working immediately.
- Pervasive Mind shall, at the prior written request of the Customer, delete the Customer’s Personal Data within (thirty) 30 days.
- Closing the account by the Customer before the end of Subscription Period for which a payment has been made does not obligate Pervasive Mind to refund the amount for the unused period.
- Pervasive Mind reserves the right to close the Customer’s account and terminate the Agreement anytime without prior notification to the Customer in case of breaching provisions of the Agreement or in the event of illegal use of the furnished Services. Pervasive Mind shall not be liable for any damages suffered by the Customer,the End-User, or any other third party arisen due to the suspension or closing of the Account by the Customer, or by the Company, or in the event of illegal or for other reasons arising from the faulty use of the offered Services by the Customer, its Agents, or End-Users.
- The Agreement will terminate simultaneously and automatically with the termination of any of the Addendum(s) unless otherwise mutually agreed by Parties.
Data Protection Compliance
- In order to fulfill the contractual obligations of the Services, there will be the processing of personal data for the Customer. Pervasive Mind is dedicated to providing data protection and to promote compliance with rules set forth by, among others, the European Union.
- The Customer shall comply with Data Protection Laws and Regulations, including, without limitation, to be authorized to pass on personal data to Pervasive Mind for the purposes stipulated in the Agreement. Upon execution by the Customer, the DPA is hereby incorporated by reference herein into the terms of the Agreement.
- Any observation or breach of data protection may be reported via firstname.lastname@example.org (or via support e-mail of the Service you use).
- Pervasive Mind will never sell, rent, or lease Customer service data to any third party. We will not share Customer service data with third parties, except as permitted by the Agreement and in order to provide, secure, and support the Services.
- Pervasive Mind guarantees the highest quality of its operations to ensure accessibility and continuity of offered Omnitok Services in accordance with their use and purpose.
- Pervasive Mind does not guarantee the compatibility of offered Services with other producers’ software. The Customer shall bear responsibility for the choice and consequences following from the use of other software, including its applicability to the Customer’s objectives. Please be aware that due to the complexity of long-distance data transmission, there is no possibility to ensure absolute security, accessibility, and continuity of the provided Service.
- Pervasive Mind shall bear no liability in particular for:
- all negative consequences being the result of force majeure;
- phrases and entries added to the network by the Customer and End-Users in connection with the use of offered Omnitok Services;
- unlawful and inconsistent with the Agreement usage of Services;
- disturbances in accessibility of offered Services not caused by Pervasive Mind;
- damages suffered by the Customer, End-User, or any other person or entity having arisen due to the third-party claims, suspension or closing of the account by the Customer, or for other reasons arising from the Customer’s fault;
- damage incurred by the Customer, End-Users, or any other person or entity as a result of Customer’s third party usage of Services that enable or prevent the Customer or End-Users from accessing the provided Services;
- damages caused by the Customer or the impossibility to use Services, incidental and consequential damages, including damage actually suffered, the loss of expected profits/benefits, data loss, damage or computer crash, the costs of substitute equipment and software, shut-down, or company reputation infringement;
- Pervasive Mind advises the Customer that restrictions or impairments of the Omnitok Service may arise which are beyond the control of Pervasive Mind, including, without limitation, actions of third parties who do not act on behalf of pervasive Mind, force majeure, fires, strikes, accidents, and technical conditions beyond the control of Pervasive Mind, e.g. the Internet. The hardware, software, and technical infrastructure used by the Customer can also influence the Services. Any delay or default affecting the availability, functionality, or timely performance of the Services caused by such circumstances will not constitute a breach of the Agreement;
- The Company shall, at its sole discretion, repair or re-perform such Services (or correct the defective part). If, at the sole discretion of the Company, the error cannot be corrected with reasonable commercial efforts, then the Company, at its sole discretion, may terminate the affected Services and credit the price of such defective Services that the Customer prepaid on a pro-rata basis for the period following the effective date of termination of the affected Services. THESE REMEDIES SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PERVASIVE MIND’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED GUARANTEE SET FORTH IN THIS SECTION.
- Liability. The Company shall be liable for any direct damage caused to the Customer due to the non-compliance with its obligations under the Agreement, excluding the situation where the damages are the result of an action or omission for which the Company is not responsible. However, in no event shall the aggregate liability of the Company with all of its affiliates arising out of, or related to, the Agreement, (including the applicable Addendum(s)), exceed the total amount paid by the Customer and its affiliates hereunder for the Services giving rise to the liability in the twelve (12) months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability but will not limit Customer’s and its affiliates’ payment obligations under the Agreement.
- The Customer agrees to the following limitation of liability to the extent permitted by applicable law: the Customer expressly understands and agrees that the Company shall not be liable to the Customer for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Company has been advised of the possibility of such damages), resulting from: (a) the use or the inability to use the Services; (b) statements or conduct of any third party on or in the Services; or (c) any other matter relating to the Services.
- If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Governing Law. The Agreement shall be governed by the laws of the Chile country, without giving effect to any principles of conflicts of law. The sole and exclusive jurisdiction and venue for any suit, action, or proceeding arising out of the Agreement shall be an appropriate court located in Santiago de Chile, and the Parties agree not to raise, and hereby waive, any objections or defenses based upon venue or forum non-conveniens. All disputes arising out of the Agreement shall be primarily resolved amicably. Pervasive Mind is open to set up a mediation in case of any conflict. Prior to initiating any legal action arising out of the Agreement, a Party shall provide the other Party written notice of a dispute and the Parties shall actively and in good faith negotiate with an aim to speedy resolution of such dispute within thirty (30) days of the receipt of such notice.