Last Updated: February 20, 2025
This Software Services Agreement (“SSA”) is made between OmniModeler, Inc., a Delaware corporation ("OmniModeler"), and Customer (defined below) and governs Customer’s use of the Hosted Application (defined below). Unless OmniModeler and Customer have entered into a separate written Master Services Agreement (“MSA”), Customer's use of the Hosted Application is governed by this SSA.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity; and "control" for the purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity, provided that any such Affiliate shall be deemed an Affiliate only for so long as such control lasts. Customer Affiliates may purchase subscriptions to the Hosted Application that are subject to the terms and conditions of this Agreement by executing an Order Form hereunder.
"Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into an Order Form.
“Customer Data” means any data, information or material provided or submitted by Customer, Customer Affiliates and/or their Users while using the Hosted Application.
“Documentation” means the OmniModeler product documentation relating to the operation and use of the Hosted Application, including technical program or interface documentation, operating instructions, update notes, and support knowledge base as updated from time to time by OmniModeler.
“Hosted Application” means the products and services that are ordered by Customer under an Order Form or online purchasing portal and made available online by OmniModeler, including associated OmniModeler offline or mobile components, as described in the Documentation.
“Malicious Code” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would: (i) cause the Hosted Application to cease functioning; (ii) damage or corrupt any OmniModeler owned or controlled data, programs, equipment, systems, servers or communications; or (iii) interfere with the operations of the Hosted Application (e.g., Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
“Order Form” means an order form mutually agreed by OmniModeler and Customer or a Customer Affiliate evidencing the purchase of a subscription to the Hosted Application, specifying, among other things, the Subscription Term, the quantity of licenses purchased, applicable fees, the billing period, and any other commercial terms as agreed to between the parties. From time to time, Customer may increase the quantity of licenses purchased by submitting a supplemental Order Form. Fees for such additional licenses shall be prorated to the nearest full day within the current billing period. Each Order Form, once mutually executed, shall be governed by, and become part of this Agreement, and is hereby incorporated by this reference.
“Prohibited Content” means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; (iv) contains Malicious Code; or (v) is otherwise objectionable to OmniModeler in its sole, but reasonable, discretion.
“Start Date” means the earlier of when an employee or agent of Customer (i) clicks a box indicating acceptance of this Agreement, (ii) executes an SSA governing this Agreement, or (iii) uses the Hosted Application.
“Subscription Term” means the period(s) during which Customer is authorized to use the Hosted Application pursuant to an Order Form, comprising the Initial Term and any applicable Renewal Terms as defined in Section 6.1.
“Taxes” means any and all customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Agreement.
“Updates” means updates of the Hosted Application for repairs, enhancements or new features applied by OmniModeler to Customer’s instances, including updates to the Documentation as a result of such updates, at no additional fee during the Subscription Term. Updates shall not include additional new functionality or upgrades to modules or applications that Customer has not already subscribed to in an Order Form and for which OmniModeler requires a separate charge from its other customers generally for such new modules or applications.
“Users” means employees of Customer and its Affiliates and their representatives, consultants, contractors, subcontractors, or agents who are authorized to use the Hosted Applications by Customer or its Affiliates.
2.1 Subject to the terms of this Agreement, OmniModeler will make available to Customer, and Customer and its Affiliates are authorized to use the Hosted Application and related Updates during the Subscription Term as set forth in the applicable Order Form(s).
2.2 Subject to the terms hereof, OmniModeler will provide Customer with technical support as defined in its Support Policy for the Hosted Application, as amended from time to time, and available at https://capmodeler.com/support.
3.1 Except as otherwise permitted under this Agreement, Customer shall not (i) license, sublicense, sell, resell, transfer, rent, lease, assign (except as provided in Section 10 ), distribute, disclose, or otherwise commercially exploit the Hosted Application; (ii) copy, modify or make derivative works based upon the Hosted Application; (iii) “frame” or “mirror” the Hosted Application on any other server or device; (iv) access the Hosted Application for competitive purposes or use the Hosted Application for application service provider, timesharing or service bureau purposes, or any purpose other than its own internal use, (v) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Hosted Application, (vi) remove, obscure or modify a copyright or other proprietary rights notice in the Hosted Applications; (vii) use the Hosted Application to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material; (viii) use the Hosted Application to create, use, send, store, or run material containing Malicious Code or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Hosted Application; (ix) attempt to gain or permit unauthorized access to the Hosted Application or its related systems or networks; or (x) permit or assist any other party (including any User) to do any of the foregoing (together, (i) through (x) each a “Restriction”).
3.2 Customer is responsible for activity occurring under its User accounts and shall ensure that it and its Users abide by all laws, treaties, and regulations applicable to Customer’s use of the Hosted Application. Customer shall: (i) notify OmniModeler promptly of any unauthorized use of any password or account or any other breach of security; (ii) notify OmniModeler promptly and use reasonable efforts to promptly stop any unauthorized use, copying, or distribution of the Hosted Application that is known or suspected by Customer or its Users; (iii) not impersonate another OmniModeler user or provide false identity information to gain access to or use the Hosted Application; and (iv) restrict each User account to only one authorized User at a time.
3.3 Further, Customer may not remove or export from the United States or allow the export or re-export of the Hosted Application or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Hosted Application and related documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.5 OmniModeler shall be responsible for collecting, using, and protecting all personal information of individuals provided by Customer in a manner consistent with its Privacy Policy, which is incorporated by reference into this Agreement. A current version of this Privacy Policy is available at https://capmodeler.com/privacy.
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose confidential and proprietary information, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Customer Data, the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Notwithstanding anything to the contrary Confidential Information of Customer includes non-public information relating to its clients, including but not limited to capitalization tables and related investor, employee, and creditor data, term sheets, contracts, and other corporate documents. Notwithstanding anything to the contrary Confidential Information of OmniModeler includes non-public information regarding features, functionality and performance of the Hosted Application and related Documentation. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). Except with the Disclosing Party’s prior written permission, the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement to anyone other than to its and its Affiliates’ directors, officers, employees, representatives, and advisors (collectively “Representatives”) who have a need-to-know such Confidential Information and are bound by obligations of confidentiality at least as stringent as those herein, and provided the Receiving Party shall remain liable to the Disclosing Party for any breach of the confidentiality and non-use obligations by any such Representatives. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 Except as expressly provided in this Agreement, if the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
4.3 As between Customer and OmniModeler, Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that it has and will continue to have all rights and consents necessary to allow OmniModeler to use all such data as contemplated by this Agreement. Customer hereby grants to OmniModeler a royalty-free, fully paid, non-exclusive, non-transferable (except as set forth in Section 10), sub-licensable, worldwide right and license to reproduce, use, process, transfer, and store Customer Data solely for the purposes of performing OmniModeler’s obligations under this Agreement and any other activities expressly agreed to by Customer.
4.4 As between OmniModeler and Customer, all right, title, and interest in and to the Hosted Application and related Documentation (including all rights therein, and all derivatives, translations, modifications, and enhancements thereof) are, and shall remain, owned exclusively by OmniModeler notwithstanding any other provision in this Agreement, Order Form, or statement of work hereunder. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Hosted Application or related Documentation. The OmniModeler name, logo and product names are trademarks of OmniModeler, and no right or license is granted to use them. All rights not expressly granted to Customer are reserved by OmniModeler. OmniModeler alone shall own all rights, title, and interest in and to any suggestions, enhancement requests, feedback, or recommendations provided by Customer or any third party relating thereto. Notwithstanding anything to the contrary, OmniModeler shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Hosted Application and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and OmniModeler will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Hosted Application and for other development, diagnostic and corrective purposes in connection with the Hosted Application and other OmniModeler offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5.1 Customer will pay OmniModeler the then applicable fees described in the Order Form for the Hosted Application in accordance with the terms therein (the “Fees”). Unless stated otherwise in the applicable Order Form, OmniModeler reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that OmniModeler has billed Customer incorrectly, Customer must contact OmniModeler no later than 60 days after the date of the bill in which the error or problem appeared, in order to receive an adjustment or credit. If an undisputed amount billed is more than 30 days past due, OmniModeler may, without limiting its other rights and remedies, provide 10 days’ notice to suspend Customer’s access to the Hosted Application until such undisputed amount is paid in full.
5.2 Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination Customer’s access to the Hosted Application.
5.3 Customer will pay all applicable Taxes excluding only those based on OmniModeler’s net income. If Customer is compelled to make a deduction or set-off for any such Taxes, Customer will pay OmniModeler such additional amounts as necessary to ensure receipt by OmniModeler of the full amount OmniModeler would have received but for the deduction. Any applicable direct pay permits or valid Tax-exempt certificates must be provided to OmniModeler prior to the execution of this Agreement. If OmniModeler is required to collect and remit Taxes on Customer’s behalf, OmniModeler will bill Customer for such Taxes, and Customer will pay OmniModeler for such Taxes.
6.1 Term. Subject to earlier termination as provided below, this Agreement is for the initial Subscription Term specified in the first Order Form ("Initial Term") plus applicable Renewal Terms as defined in its initial Order Form and related supplemental Order Form(s), collectively (the “Subscription Term”).
6.2. Auto-Renewal. Unless either party requests termination at least thirty (30) days prior to the end of the Subscription Term, this Agreement shall automatically renew for additional periods ("Renewal Terms”) as defined in the applicable Order Form at OmniModeler’s then-current pricing for the Hosted Application.
6.3 Suspension for Non-Payment. OmniModeler may suspend Customer’s access to, or use of, the Hosted Application upon ten (10) days’ written notice to Customer if any amount due to OmniModeler under any invoice is past due. If Customer fails to pay within 30 days of receipt of OmniModeler’s notice of suspension for late payment, OmniModeler may terminate this Agreement and/or the applicable Order Forms immediately upon written notice to Customer.
6.4 Termination for Cause. Either party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days’ notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
6.5 If Customer terminates this Agreement in accordance with Section 6.4, OmniModeler will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Term as of the date of such termination.
6.6 Upon any termination, OmniModeler will upon written request make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter OmniModeler may, but is not obligated to, delete stored Customer Data.
6.7 Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 4 (Confidentiality; Proprietary Rights), 5 (Payment of Fees), 6 (Term and Termination), 8 (Indemnity), 9 (Limitation on Liability), and 10 (Miscellaneous, as applicable).
7.1 OmniModeler warrants, during the Subscription Term, that: (i) it shall use reasonable efforts consistent with prevailing industry standards to maintain the Hosted Application in a manner which minimizes errors and interruptions in the Hosted Application; (ii) the functionality of the Hosted Application at the time of the Order Form shall not materially decrease during the Subscription Term. The Hosted Application may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by OmniModeler or by third-party providers, or because of other causes beyond OmniModeler’s reasonable control, but OmniModeler shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.2 Customer represents and warrants it: (i) is entitled to transfer, or enable the transfer of, all Customer Data to Omni; (ii) has all rights necessary to grant OmniModeler the licenses set forth in this Agreement; and (iii) will not transmit any Prohibited Content to OmniModeler whether by means of the Hosted Application or as required for OmniModeler’s provision of Support hereunder.
7.3 HOWEVER, OMNIMODELER DOES NOT WARRANT THAT THE HOSTED APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE HOSTED APPLICATION. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE HOSTED APPLICATION SERVICES ARE PROVIDED “AS IS” AND OMNIMODELER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.4 To submit a warranty claim under this Section, Customer shall provide written notice of a warranty claim specifying the non-conformity. If the non-conformity persists without relief more than 30 days after written notice of a warranty claim provided to OmniModeler under this Section, then Customer may terminate this Agreement and OmniModeler, as its sole liability in connection with a breach of this warranty, shall refund to Customer any prepaid subscription fees covering the remainder of the Subscription Term after the effective date of termination. Notwithstanding the foregoing, this warranty shall not apply to any non-conformity due to any modification of or defect in the Hosted Application that is made or caused by someone other than OmniModeler (or someone acting at OmniModeler’s direction).
8.1 OmniModeler shall hold Customer harmless from liability to third parties resulting from infringement by the Hosted Application of any United States patent or any copyright or misappropriation of any trade secret, provided OmniModeler is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; OmniModeler will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by OmniModeler, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by OmniModeler, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Hosted Application is held by a court of competent jurisdiction to be or are believed by OmniModeler to be infringing, OmniModeler may, at its option and expense (a) replace or modify the Hosted Application to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Hosted Application, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for its use of the Hosted Application.
8.2 Customer shall hold OmniModeler harmless from liability to third parties resulting from (i) Customer or a User violating a Restriction; (ii) Customer’s breach of Section 7.2; and (iii) any allegation by a governmental body that use of Customer Data, as permitted by OmniModeler under this Agreement or at Customer’s request or direction, has violated any applicable law, provided Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement.
9.1 LIMITATIONS OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY’S TOTAL AND AGGREGATED LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY UNDER THIS AGREEMENT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES LEGALLY OWED UNDER THIS AGREEMENT.
9.2 EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR OTHER SIMILAR DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE, GOODWILL OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
9.3 LIMITATION OF LIABILITY EXCLUSIONS. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL LIMIT A PARTY’S LIABILITY FOR ITS (A) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) FRAUD OR FRAUDULENT MISREPRESENTATION, (C) DEATH OR BODILY INJURY CAUSED BY NEGLIGENCE, (D) OBLIGATIONS EXPRESSLY STATED UNDER SECTION 8 (INDEMNITY), OR (E) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. This Agreement is not assignable, transferable or sublicensable by Customer except with OmniModeler’s prior written consent. OmniModeler may transfer and assign any of its rights and obligations under this Agreement without consent. Customer agrees that Customer’s purchase of any subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by OmniModeler with respect to future functionality or features. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind OmniModeler in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions or the United Nations Convention on the International Sale of Goods. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement shall be submitted to and finally settled by arbitration using the English language in accordance with the Arbitration Rules and Procedures of the applicable Forum above then in effect, by one or more commercial arbitrator(s) with substantial experience in the industry and in resolving complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement. Notwithstanding the foregoing, each party shall have the right to institute an action in any court of proper jurisdiction for injunctive relief. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between the parties. There are no third-party beneficiaries to this Agreement. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control (a “Force Majeure Event”). The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event. For the avoidance of doubt, a Force Majeure Event does not limit Customer’s obligations to pay fees duly owed to OmniModeler. If the effects of the Force Majeure Event continue unmitigated for a period of 30 consecutive days, then either party may terminate this Agreement and/or any Order Form, upon written notice to the other party, and OmniModeler, as its sole liability, shall refund any prepaid fees covering the remainder of the Subscription Term of the affected subscription after the effective date of termination.
