a. Customer shall submit to OMB Ltd. (Israeli private company no. 514468131, having its place of business at: 24, Hazorim St. Efrat, Israel) (“OMB”) – via OMB’s website – the purchase orders (“Orders”) stating the OMB product catalog name and the amount of such OMB products that Customer desires to receive (the “Products”). Orders shall become binding commitments to accept the number of Products stated therein – under the terms set forth on OMB’s website (as may be amended from time to time) and in accordance with the terms herein – only upon acceptance of the Orders by OMB (via email to the Customer).
b. Customer may cancel a purchase order only with the prior written approval of an authorized representative of OMB, or in accordance with the “Cancellation Policy” set forth below. No additional terms or terms inconsistent with those contained in this Agreement, or stated in Orders, will be accorded any legal effect.
c. OMB shall devote commercially reasonable efforts to deliver the full quantity of units ordered, within [60] days of receipt and acceptance of a purchase order. If delivery by OMB is not anticipated within the said time frame, OMB shall notify Customer, and Customer may agree to accept later delivery or may cancel its order in whole or in part in writing within 5 days of receipt of OMB’s notice. Packaging and delivery of the OMB Product units shall be in accordance with OMB’s customary procedures. OMB shall not be liable for any delay in delivery of the OMB Products due to causes, in whole or in part, beyond OMB’s control. In this Agreement, “causes beyond OMB’s control” include, but are not limited to acts of force majeure, acts of God, natural disaster, fire, explosions, embargo, acts of civil or military authority, fires, epidemics, pandemics, floods, riots, wars, sabotage, labor disputes, strike, yield problems, governmental actions, inability to obtain materials, components, energy, manufacturing facilities, or transportation, causes arising from OMB’s sub-contractors, or any other circumstances beyond OMB’s control. In the event of any such delay, the date of delivery or performance hereunder shall be extended by a reasonable period of time. OMB shall, however, promptly make delivery when any such cause interfering with delivery shall have been removed.
d. Customer agrees to receive, inspect, and accept shipments made pursuant to each purchase order at the time of delivery. OMB Products offered for delivery in a damaged condition (Dead on Arrival) or OMB Products that do not conform to their specifications (as set forth on OMB’s website, as may be updated from time to time) (“Specifications”) or are materially defective in materials or workmanship shall be rejected and returned to OMB in accordance with section 6 below, together with such documentation as may reasonably be required, notification of which shall be sent to OMB within [fourteen (14) days].
a. Products:
OMB sells the following products:
(i) OMB’s proprietary pedals (“Pedals”)
(ii) OMB’s proprietary kits “Kits”, which enable integrating OMB’s hardware to Customer’s guitars (only to the guitars set forth in Exhibit A hereto) (hereinafter “Enabled Guitars”), in accordance with the video file [insert a reference to the video file, and make sure to have a dated file] (“Assembly File”).
(iii) new guitars ordered from OMB (“Featured Guitars”), which are manufactured by third parties (as set forth on OMB’s website), into which OMB’s hardware is integrated by OMB.
(the Pedals, the Kits, and the Featured Guitars shall each be deemed an “OMB Product”, and together with OMB’s proprietary mobile application (but with or without the Pedal, which is an optional add-on accessory) they shall be deemed as the “OMB System”).
b. Compatibility of OMB Products to the OMB System:
The OMB Products are compatible with, and are intended for use with, OMB’s mobile application, which can be downloaded at: https://apps.apple.com/us/app/omb/id1440465420. Use of the mobile application is subject to the terms of the software license attached thereto. The OMB Products may work with other mobile applications as well, but OMB takes no responsibility for the compatibility with other applications.
The OMB Products are only compatible with the other components of the OMB System.
Any use of the OMB Products in any other form, or any integration of an OMB Product with any other hardware or software, may not necessarily generate the best results (and may not even work at all), nor will OMB bear any responsibility or liability for such use.
a. OMB shall retain all right, title and interest in and to all Intellectual Property Rights underlying the Pedals, the Kits, and the Featured Guitar (subject to subsection (c) below),and/or any derivative work thereof. Intellectual Property Rights includes all intangible legal rights, titles and interests evidenced by or embodied in (i) all inventions, improvements thereto, patents, patent applications, patent disclosures, together with all re-issuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof; (ii) all trademarks, service marks, trade dress, designs, trade styles, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith; (iii) any work of authorship or compilation, all copyrightable works, copyrights (including the droit morale) and all applications, registrations, and renewals in connection therewith; (iv) all mask works and all applications, registrations, and renewals in connection therewith; (v) all trade secrets and Confidential Information (i.e. non-public information and/or data in any form whatsoever); (vi) all other proprietary rights and any other similar rights, in each case on a worldwide basis, and all copies and tangible embodiments thereof.
b. Customer is prohibited from marketing and/or distributing OMB’s Products.
c. All right, title and interest in the Featured Guitars (excluding the OMB Products) sold by OMB are owned by their respective owners. OMB represents that it has the right to distribute and sell such guitars.
d. Customer shall have no interest in OMB Products and/or any derivative work thereof, except as expressly provided under this Agreement. All rights related to the OMB Products that are not specifically granted to Customer hereunder, are reserved by OMB.
e. Customer shall promptly notify OMB of (i) any claims, allegations, or notification that its assembling, marketing or selling of OMB Products and/or Enabled Guitars may, or will, infringe the Intellectual Property rights of any third party; and (ii) any determination, discovery, or notification that any third party is or may be infringing the Intellectual Property rights of OMB.
f. OMB Kits may not be used by Customer for any purpose other than for assembling Enabled Guitars.Without derogating from any of the foregoing, Customer shall not, and shall not permit any third party to: (i) deviate from the instructions set forth in the Assembly Files without obtaining OMB’s written consent; (ii) attempt or permit others to reverse engineer, reverse assemble or decompile OMB Products or any of its components; (iii) engage, itself or through the assistance of any third party, directly or indirectly, in the research, development, manufacturing, marketing, distribution, sale, lease or licensing of any technology which is or may constitute a derivative work of OMB Products; (iv) represent that it possesses any proprietary interest in the technology underlying OMB Products; (v) directly or indirectly, take any action to contest OMB’s Intellectual Property Rights or infringe them in any way; (vi) register any trademarks, trade names or symbols of OMB (or which are similar to OMB’s); and (vii) use the name, trademarks, trade-names, and logos of OMB in any manner whatsoever (except as they appear in the software driver).
g. OMB will have no liability for infringement claims arising from: (a) any combination of Products with other products not provided by OMB, but not covering such Products standing alone; (b) the modification of such Products unless such modification was made or authorized by OMB, where such infringement would not have occurred but for such modifications; or (c) integration of the Kits with incompatible guitars (i.e. guitars which are not listed on Exhibit A). If a third party claims that a Product infringes that party’s rights as a result of the foregoing, Customer will defend OMB against that claim and pay amounts on the same basis as OMB does for Customer as set out herein. The foregoing states the entire liability and obligation of the indemnifying party and the exclusive remedy of the indemnified party, with respect to any alleged or actual infringement of patents, copyrights, trade secrets or trademarks by the Products or the use, combination, or modification thereof.
a. OMB may update the price per Products on its website, from time to time.
b. The prices displayed on the website include shipping and handling by OMB but do not cover any taxes or fees that might be applied in your country on imported goods. Please check your local tax regulations as OMB is not responsible for any additional fees & taxes upon delivery.
c. All payments by Customer shall be made in US dollars. The payments shall be made via the payment methods set forth on OMB’s website, as may be determined by OMB from time to time.
d. The payment methods offered during checkout are provided by 3rd party payment processors. Please make sure to go over the terms & conditions of the selected 3rd party processor before finalizing your purchase.
a. Customers shall be entitled to cancel an order, in accordance with the terms of the Israeli Consumer Protection Law 1981, and the regulations thereunder.
b. Without derogating from the above, for all types of DIY kit the Customer shall be permitted to cancel an order until 30 days following receipt of the Product.
b. For other products on OMB Web Shop (not included Ketron products) , the Customer shall be permitted to cancel an order until 14 days following receipt of the Product. The above shall not apply with respect to: (i) Products that have already been used by the Customer. (ii) custom-made Products, prepared specifically for the Customer (e.g., Enabled Guitars of a certain manufacturer).
c. In such an event of cancellation, the Customer shall send the Product back to OMB, at Customer’s cost, or deliver it to OMB’s address, as stated above.
d. Upon cancellation, OMB shall charge Customer the lower of: (i) 5% of the aggregate cost of the Product, which purchase had been cancelled; or (ii) $30 USD
e. Without derogating from the above Upon cancellation, and in case some parts are missing, OMB is entitled to charge customers for those missing parts.
f. The Customer shall bear full responsibility for damage during in-bound shipment.
a. Subject to the terms and conditions of this Agreement, OMB warrants that for a period of one (1) year commencing upon the date of shipment of the OMB Products to Customer: (i) OMB Products and/or the Featured Guitars that are provided by OMB, and the Enabled Guitars when assembled in accordance with the Assembly File (and subject to the full functionality of the Customer’s guitar), will conform to their Specifications in all material respects, and all components provided by OMB are free from defects in materials and workmanship under normal use and service. All claims and remedies are limited in the manner expressly provided in this Agreement. Customer will promptly inspect and test all Products for compliance with Specifications.
b. The sole and exclusive remedy for any breach of OMB’s warranty shall be (at OMB’s choice), to either obtain from OMB: (i) the repair of the defective components of the OMB Products, (ii) the replacement of the defective OMB Products or (iii) the refund of Customer’s purchase price for such OMB Products. Customer shall provide OMB a written report of any and all warranty claims.
c. Any replacement parts furnished at no cost to the Customer in fulfilment of this warranty are warranted only for the unexpired portion of the original warranty. Any services or repair outside the scope of this limited warranty shall be at OMB’s rates and terms then in effect.
d. The following are excluded from OMB’s warranty: (i) insignificant defects, such as errors that can be easily corrected and will not show up as a performance defect; (ii) defects discovered in any components of the OMB Kits that have been modified, altered, or enhanced without OMB’s prior consent; (iii) component(s) of the OMB Product(s) that have been subjected to misuse, abuse, rough handling, neglect, use of improper components or failure to comply with the operating instructions and good industry practice; (iv) improper installation or testing; (v) use of the Product(s) for purposes other than those for which it was designed; and (vi) Failure to return units with the complete accessory kit originally supplied (if supplied).
e. OMB shall bear no liability whatsoever for any guitar purchased directly by Customer (other than Featured Guitars), whether or not such damage is connected to the integration of OMB’s Products to the guitars.
f. OMB’s liability with respect to Featured Guitars shall not exceed the liability provided by the applicable guitar’s manufacturer.
g. Any damaged OMB Products returned to OMB, and / or any OMB Products for which the Customer requires service to be provided, will be sent to OMB only after receipt of a written (email) confirmation from OMB. Upon encountering such damage or defect, the Customer shall contact OMB via email at: [email protected] , detailing the problem. Only after receipt of written confirmation, will the Customer be permitted to return the (allegedly) defective Product. Receipt of an email confirmation from OMB does not and shall not indicate that OMB’s limited warranty applies to such OMB Products.
h. All Products should be returned in a manner that will prevent damage. Any Product received damaged at OMB’s facility, such damage not appearing on the RMA request, will not be repaired or replaced by OMB. To avoid voiding the warranty, use OMB or equivalent packaging to return a Product.
i. With regard to out-of-warranty Products sent back to OMB, OMB will charge its standard rates for the evaluation and repair of the Product(s). Prior to proceeding with the repair of a product that is out-of-warranty, OMB will send the Customer a cost proposal that must be signed for acceptance and returned.
j. OMB will pay for surface/ground return freight only, for warranty repairs. If Customer requires overnight or other special requirements for expedited shipment, these will be at the Customer’s expense. Upon OMB’s sole determination that the Product was not damaged, Products may be sent back to sender, at Customer’s expense.
k. The remedy stated in subsection 7(b) constitutes the sole and exclusive remedy of Customer, as well as their successors and assigns, for any defect or nonconformity to their Specifications.
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, OMB HEREBY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, BY STATUTE CUSTOM, COURSE OF DEALING OR TRADE USAGE, OR OTHERWISE, REGARDING OMB KITS, THE OMB PEDALS, THE ENABLED GUITARS AND/OR THE FEATURED GUITARS, THEIR FITNESS FOR ANY PURPOSE, THE QUALITY OF THE UNITS, THEIR MERCHANTABILITY, OR OTHERWISE.
a. OMB SHALL NOT BE LIABLE TO CUSTOMER AND/OR TO ANY THIRD PARTIES, FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGE OR INJURY TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, SERVICES, OR TECHNOLOGY OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE), SUFFERED BY ANY OF THE ABOVEMENTIONED (OR ANY OTHER PERSON) ARISING FROM AND/OR RELATED WITH AND/OR CONNECTED TO ANY USE (OR INABILITY OR FAILIURE TO USE) OF ANY OF THE FOREGOING OR ARISING FROM ANY CLAIM RELATING TO THESE TERMS OR THEIR SUBJECT MATTER, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
b.IN THE EVENT THAT, NOTWITHSTANDING THE TERMS OF THIS AGREEMENT, OMB IS FOUND LIABLE FOR DAMAGES BASED ON ANY DEFECTOR NONCONFORMITY, OMB’S TOTAL LIABILITY FOR EACH PRODUCT SHALL NOT EXCEED THE PRICE PAID BY CUSTOMER TO OMB FOR SUCH PRODUCT.
a. OMB may amend these Terms and Conditions at any time, by publishing the new Terms and Conditions on its website.
b. If any clause, provision, or portion of these Terms is found to be or ruled invalid, void, illegal, unlawful or otherwise unenforceable to any extent under any law or by any court, arbitrator, or other proceeding, then such document(s) shall be amended to the extent required to render it valid, legal and enforceable, or such term, clause, provision or portion described above shall be deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof to the fullest extent permitted by applicable law.
c. This Agreement shall be governed and construed under the laws of the State of Israel, except for portions related to conflicts of laws. Each party hereto irrevocably and unconditionally consents to and agrees that any and all disputes or controversies arising under, out of, or in connection with these terms or otherwise related hereto and any amendments hereto or thereto or the breach hereof or thereof, shall be brought exclusively in the jurisdiction and venue of the courts located in Tel Aviv, Israel. Notwithstanding the foregoing, OMB shall have the right to seek an immediate injunction in respect of any breach of this Agreement in any jurisdiction and court.
d. All Schedules hereto are hereby incorporated by reference and made a part of this Agreement.
