TERMS AND CONDITIONS
MASTER SERVICES AGREEMENT
Effective by clicking "I ACCEPT" Dated : Jan 20 2019
Last Updated : July 15 2018
PLEASE READ THIS AGREEMENT ("Agreement") CAREFULLY. BY CLICKING "I ACCEPT", BY ANY MEANS, YOU ("you", "your" or "Customer") ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU "CUSTOMER" AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER BY CLICKING "I ACCEPT". AS THE INDIVIDUAL CLICKING THROUGH AND ACCEPTING THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE THE FULL AND LAWFUL AUTHORITY OF CUSTOMER TO ENTER INTO THIS AGREEMENT ON ITS BEHALF. IF YOU DO NOT AGREE, DO NOT CLICK ON "I ACCEPT". IF YOU AGREE, USERS OF CUSTOMER SHALL BE BOUND BY THE CONDITIONS AND RESTRICTIONS OF THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS AGREEMENT APPLY TO ANY AND ALL USE OF THE SERVICE BY CUSTOMER AND/OR ITS USERS, INCLUDING WHERE CUSTOMER IS USING THE SERVICE PURSUANT TO ANY DEMO OR TRIAL PERIOD, FOR THE TERM OF THIS AGREEMENT AND CUSTOMER, ON ITS OWN BEHALF AND ON BEHALF OF ITS USERS, AGREES AND CONSENTS TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT REGARDLESS OF THE TYPE OF USE OF THE SERVICE BY CUSTOMER. This Agreement, as amended from time to time, is between Customer and Orblogic Inc. and shall apply to all dealings between Customer and Orblogic Inc. and all use of the Service by Customer.
1.1 "Customer Data" means all data or information submitted by or on behalf of Customer to the Service (HRMatrix).
1.2 "Documentation" means all user manuals and online help provided by Orblogic to its customers generally pertaining to the Services.
1.3 "EU Data Protection Law" means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation).
1.4 "Order Form" means the document describing the Service, applicable fees and charges, along with the payment terms prepared and signed by the parties in accordance with, and governed by the provisions of, this Agreement.
1.5 "Personal Information" means any information about an individual who is identifiable but does not include aggregate or anonymous information, or information used only to contact an individual in their capacity or position as an employee or official of an organization.
1.6 "Privacy Laws" means any statute, legislation, regulation, or ruling, directive or order, of any government, legislature, parliament, regulatory authority, governmental department, agency, commission, board, tribunal, crown corporation, or court or other law, rule or regulation making entity having or purporting to have jurisdiction on behalf of any nation, or province or state or other subdivision thereof, or any municipality, district or other subdivision thereof, with respect to individual privacy and/or access to Personal Information, and with respect to the collection, use or disclosure of Personal Information, and having or purporting to have jurisdiction over any person, including any User.
1.7 "Professional Services" means implementation, training and support services. Professional Services shall not include the Service.
1.8 "Service" means the online, web-based software-as- a-service application made available to Customer by Orblogic, as described in an Order Form.
1.9 "Software" shall mean any plug-ins, agents, mobile applications, administrative code, APIs or other software that Orblogic may provide to Customer in connection with the Service. In the event Orblogic provides any Software, such Software shall be part of the Service.
1.10 "Term" shall mean the period in the Order Form during which your Users are authorized to use or access the Service pursuant to the terms set forth in this Agreement, unless earlier terminated as set forth in Section 6.
1.11 "Third-Party Platform" means any software, software-as- a-service, data sources or other products or services not provided by Orblogic that can be integrated with Services at the sole discretion of Customer as described in the Documentation.
1.12 "User" shall mean an individual who is authorized by Customer to use or access the Service and for whom a subscription to the Service has been procured. Users may include Customer's employees, contractors and agents.
1.13 "User Fee" means Orblogic's then current fee for one (1) User to access and use the Service for the then current Term.
2.1 License. Subject to compliance with the terms and conditions of this Agreement and the applicable Order Form, Orblogic grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable license to access and use the Service, including the Documentation, during the Term of this agreement.
2.2 Third-Party Platform. The Service does not support integrations with any Third-Party Platforms. For the Service to communicate with Third-Party Platforms, Customer may be required to input credentials and/or create integration required for the Service to access and receive relevant information from Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes such Third-Party Platforms to access Customer's accounts within the Service. Having chosen to integrate the Service with a Third-Party Platform, Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Orblogic is not responsible nor take any responsibility for such kind of integration. The Customer Data Processing Agreement under Section 7 does not apply to data processing on the Third-Party Platform and the Customer shall be solely responsible for any Customer Data including any Personal Information shared with Third-Party Platform. Customer acknowledges and agrees that Orblogic has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. Orblogic does not guarantee that the Services will maintain integrations with any Third-Party Platform and Orblogic may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Service, even if accessed through an integration with a Third-Party Platform.
2.3 Service Level Agreement. Orblogic shall use commercially reasonable efforts to make the Service available to Customer twenty-four (24) hours a day, seven (7) days per week, subject to the terms of the Service Level Agreement attached hereto as Schedule .
2.4 Professional Services. Customer may purchase Professional Services under this Agreement by executing an Order Form or Statement of Work with Orblogic. Such document shall describe the Professional Services and incorporate this Agreement by reference.
2.5 Trial Terms. Notwithstanding any terms to the contrary, if Customer is participating in a trial of the Service, the Term of the Service shall be solely for the duration of the trial and the following terms and sections shall not apply: (i) any terms related to fees or payments, including without limitation, the terms set forth in Section 4 ("Fees"), (ii) Section 10.1 ("Indemnification by Orblogic"), (iii) Section 11.2 ("Publicity").
Customer will use the Service only for Customer's internal business operations and in accordance with the Documentation and the terms of this Agreement. Customer shall not (i) use the Service as a service bureau, (ii) sublicense, re-license or sell rights to access and/or use the Service to transfer or assign rights to access or use the Service (other than as permitted pursuant to Section 11.3, (iii) modify, translate, reverse engineer, decompile or create derivative works of the Service; (iv) transmit or share identification or password codes to persons other than Users; (v) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; and (vi) use any automated tool (e.g. robots, spiders) to access or use the Service. Customer agrees that its use of the Service will be in a manner consistent with this Agreement and that complies with all applicable laws and regulations, including without limitation, all Privacy Laws, copyright, trademark, patent, trade secret and export control laws, as well as those laws prohibiting the use of telecommunications facilities to transmit illegal, obscene, threatening, harassing, or other offensive messages. Customer acknowledges that Orblogic shall not be responsible and shall have no liability for any use or misuse of the Service by Customer or its Users, employees or contractors. In particular, Customer will not, nor shall it permit or assist others, to abuse or fraudulently use the Service, including but not limited to: (a) obtaining or attempting to obtain the Service by any unauthorized means or device with intent to avoid payments or otherwise avoid the operation or application of this Agreement; (b) accessing, altering, or destroying any information belonging to any person other than Customer, or attempting to do so; or (c) using the Service to interfere with the use of the Service by other licensees, companies or users.
4.1 Pricing and Payment. Customer shall pay all fees or charges accruing to Customer's account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is or becomes due and payable. Charges will be equal to the number of total Users multiplied by the User Fee in effect at the time with specific modules, or as otherwise specified by Orblogic. Payments will be charged monthly in the first week of the month, unless otherwise mutually agreed. All payment obligations are non-cancellable and all amounts paid are non-refundable. Customer is responsible for paying all User Fees for all Users ordered for the entire Term, whether or not such Users actually use the Service. Customer must provide Orblogic with an executed Order Form, as a condition to being granted access to the Service. Customer may add Users by paying applicable User Fees.
4.2 Orblogic reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Customer, which notice may be provided by e-mail or by posting in the Service, provided that, Orblogic will not change fees during an ongoing Term. If Customer does not agree to the modification of the fees or charges, Customer may terminate its account by providing notice at least thirty (30) days before the price modification is to take effect. Fees for other services, including Professional Services, will be charged on an as quoted basis. All pricing terms are confidential, and Customer shall not disclose them to any third party. Orblogic may invoice Customer from an Orblogic Affiliate and Customer will pay Orblogic or such Affiliate as directed by Orblogic.
4.3 Billing Information. Customer agrees to provide Orblogic complete and accurate billing and contact information, which shall include Customer's legal company name, street address, valid e-mail address, and name and telephone number of an individual who will be responsible for and authorized to make all decisions concerning the Service on Customer's behalf, including acting as a billing contact. Customer will update such information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, Orblogic reserves the right to terminate Customer's access to the Service in addition to any other legal remedies. Orblogic issue a payment info form that contains payment info, customer provides a valid payment info to process payment.
4.4 Adjustments and Credits. In the event that Customer believes its charges are incorrect, Customer must contact Orblogic in writing within forty-five (30) days of the date of the payment processing containing the amount in question to be eligible to receive an adjustment or credit.
4.5 Taxes. Orblogic's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Orblogic's income. If Orblogic is required to pay or collect any federal, state, provincial, municipal, local or value-added tax on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Orblogic's net income, then such taxes and/or duties will be billed to and paid by Customer immediately upon receipt of Orblogic's payment processing and supporting documentation for the taxes or duties charged.
5.1 Reservation of Rights. Except for the rights expressly granted herein, all rights, titles and interests to any and all proprietary rights and intellectual property rights, including but not limited to copyright and patent rights, in the Service including, without limitation, the underlying software, the Software, the Use Data, the Anonymous Data and the Aggregated Data will remain with, and be the exclusive property of, Orblogic Inc.
5.2 Customer Data. Except for the rights expressly granted herein, all rights, titles and interests to any and all proprietary rights and intellectual property rights in the Customer Data, will remain with and be the exclusive property of Customer. Customer Data is deemed the Confidential Information of Customer under this Agreement.
5.3 Use Data. Customer acknowledges and agrees that Orblogic Inc. may derive or create data and information about the use of the Service by Customer and its Users ("Use Data") and Orblogic may use and disclose Use Data to its third party service providers in order to improve the Service.
5.4 Anonymous Data. Customer acknowledges and agrees that Orblogic may obtain and aggregate technical and other data about Customer's use of the Services excluding any personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and Orblogic may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose, during and after the term of this Agreement, including without limitation to generate industry benchmarks or best practices guidance, recommendations or similar reports for distribution to and consumption by Customer and other Orblogic customers and prospects. For clarity, this Section 5.4 does not give Orblogic the right to identify Customer as the source of any Aggregated Anonymous Data.
6.1 Term of Agreement. This Agreement will commence the day the Service is available to Customer and will continue until all User licenses granted in accordance with this Agreement have expired or been terminated. If you elect to use the service as a free trial period, and do not purchase a subscription before the end of such period, this agreement will expire at the end of the free trial period.
6.2 Term of Service. The Term of the Service shall be specified in the relevant Order Form and continue for the Term specified therein. Each Term will automatically renew or successive periods (each a " Renewal Term") of one year unless either party gives the other party not fewer than thirty (30) days' notice of its intent not to renew, or unless terminated earlier under the terms contained within this Agreement. You are solely responsible for the cancellation of the subscription. You may cancel your subscription at any time.
6.3 Termination for Cause. Either party may terminate this Agreement for material breach by the other party, provided, however, that the terminating party has given the other party at least 120 days written notice of and the opportunity to cure the breach (including notice by email). Termination for breach will not preclude the terminating party from exercising any other remedies for breach available to it under applicable law. In the event that Customer becomes insolvent, or is placed in receivership or equivalent status, or files or is petitioned into bankruptcy or similar protection from creditors under any statute, Orblogic may terminate this Agreement immediately. Upon termination or expiry of this Agreement, Customer will cease to have any right to access or use the Service and Customer will immediately return to Orblogic any Confidential Information of Orblogic provided to Customer by Orblogic or on its behalf.
6.4 Effect of Termination. Following termination or expiry of this Agreement, Orblogic may retain Customer Data for a period of up to thirty (30) days, following which Customer Data may be destroyed by Orblogic without further notice, and without any liability to Customer. Delivery of Customer Data to Customer following termination or expiry of this Agreement shall be subject to availability, solely at the discretion of Orblogic, and shall be subject to additional charges payable to Orblogic at its then-current rates for delivery of Data, and shall be by the means, and in the format, made available by Orblogic.
6.5 Suspension of Service. Orblogic shall have the right, on notice to Customer, to suspend access to the Service in the event Customer has breached this Agreement or is in default of payment. Orblogic shall also have the right to suspend access to the Service without notice in circumstances where the Service is under threat, or subject to attacks, or subject to technical failures or events beyond the control of Orblogic, whether as a result of Customer's conduct, the conduct of third parties, or otherwise, in order to avoid harm to the Service or the data of Orblogic’s customers, or to preserve the integrity of the Service or data available to customers using the Service. However, in case of your nonpayment to Orblogic for the service (including in the event when your credit card cannot be processed and/or charged), Orblogic has the full right to suspend and/or terminate the service, and also terminate the agreement. Nothwithstanding the foregoing, Orblogic immediately suspend or terminate your access to the service without liability, as determined by Orblogic in its sole discretion.
6.6 Subscription Termination. In the event your subscription is terminated for the service, other than in instances where it is terminated by Orblogic for non-payment, you can download the material from your website. Orblogic is not responsible for any material download from your website.
7.1 Protection. "Confidential Information" means any and all information related to a party’s business that is labeled or identified as "confidential" or "proprietary"; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, content, technical information, pricing, business forecasts and strategies, and information regarding personnel, customers and suppliers. Customer acknowledges that the Service (including, without limitation, Third-Party Platforms) embodies logic, design and coding methodology that constitute valuable Confidential Information that is proprietary to Orblogic. Customer will safeguard the right to access the Service, using the same standard of care that Customer uses for its own confidential materials, being at least a reasonable standard of care. Subject to Section 5, Customer Data will be held as confidential by Orblogic and will not, without the prior written consent of Customer, or as required by applicable law, be disclosed or be used for any purposes other than as expressly permitted herein or the performance of this Agreement. Orblogic will safeguard the confidentiality of Customer Data using the same standard of care that Orblogic uses for its own confidential materials, being at least a reasonable standard of care.
7.2 Exclusions. The obligations of a party as recipient of the other party's Confidential Information to maintain confidentiality does not apply to such of the Confidential Information of the other party that: (i) is or becomes, through no act or failure to act on the part of the recipient party, generally known or available to the public; (ii) is known by the recipient party at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to the recipient party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the recipient party as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by the disclosing party. Further, notwithstanding the foregoing, disclosure of Confidential Information will not be precluded if such disclosure: (a) is in response to a valid order of a court or other governmental body having jurisdiction over the recipient party; (b) is otherwise required by law; or (c) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Once Customer Data is destroyed by Orblogic as provided in this Agreement, Orblogic shall have no further obligation with respect to such Customer Data.
7.4 EEA Requirements. To the extent Customer Data is protected by, or otherwise regulated by, EU Data Protection Law, the terms set out in the Customer Data Processing Addendum [available at www.orblogic.com/privacy-policy] shall form part of this Agreement and shall apply in addition to the terms set out in this Section 7 (Confidentiality and Privacy).
7.5 Compelled Disclosure. If the recipient party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide disclosing party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
8.1. The service offering my change in different versions at different levels, not all features and functionality of service may be available in each version or level. Orblogic reserve the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the service on a temporary or permanent basis, without liability to you or any third party.
8.2. Orblogic may add, modify or remove portions of the service at any time without notification to you.
9.1 Orblogic Warranties. Orblogic warrants (i) the Service will be provided in conformity with generally prevailing industry standards, (ii) the Service will perform materially in accordance with the Documentation under normal use and circumstances; Customer must report any material deficiencies in the Service to Orblogic in writing within thirty (30) days of Customer's discovery of the defect. Customer's exclusive remedy for the breach of the warranties in (i) and (ii) above will be for Orblogic to use commercially reasonable efforts to provide the Service in accordance with this Agreement. If Orblogic is unable to correct the reported issue as warranted within a reasonable time following receipt of written notice of breach, Customer shall be entitled to terminate the service.
9.2 Customer Warranties. Customer warrants and represents that Customer has all necessary consents to allow Orblogic to use and disclose to Customer any and all Personal Information about Customer's Users collected or acquired by Orblogic.
9.3 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE WITH ANY DESCRIPTION, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. ORBLOGIC EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, GUARANTEES OR CONDITIONS. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, ORBLOGIC MAKES NO REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY COMPONENT OF THE SERVICE. ORBLOGIC DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SERVICE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY INFORMATION OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE ABSENT OR WILL BE CORRECTED, OR (F) THE SERVICE OR THE COMMUNICATION FACILITIES, INCLUDING, WITHOUT LIMITATION, THE INTERNET, THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ARE SECURE FROM INTERRUPTION, INTERCEPTION OR CORRUPTION BY THIRD PARTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED TO CUSTOMER STRICTLY ON AN "AS IS" "WHERE IS" AND "AS AVAILABLE" BASIS.THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRY OF THIS AGREEMENT AND CONTINUE IN EFFECT.
9.4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ORBLOGIC HEREBY EXCLUDES FOR ITSELF, AND ITS AFFILIATES, LICENSORS AND SUPPLIERS (INCLUDING WITHOUT LIMITATION, ANY THIRD PARTY PROVIDING THIRD PARTY SERVICES), ANY LIABILITY IN EXCESS OF THE FEES PAID BY CUSTOMER TO ORBLOGIC DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OR ACT OR OMISSION GIVING RISE TO THE CLAIM (THE "COMPENSATION AMOUNT"), HOWSOEVER CAUSED, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
9.5. ORBLOGIC SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, OR FOR ECONOMIC LOSS, LOSS OF REVENUE OR PROFITS OR INVESTMENT OR THE LIKE, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OF OTHER FINANCIAL LOSS, PROPERTY DAMAGE OR PERSONAL INJURY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION, MAINTENANCE, USE, PERFORMANCE, FAILURE, OR INTERRUPTION OF THE SERVICE, PROFESSIONAL SERVICES AND THE SOFTWARE, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR ORBLOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORBLOGIC SHALL HAVE NO LIABILITY TO ANY THIRD PARTY OTHER THAN CUSTOMER CLAIMING RIGHTS UNDER THIS AGREEMENT. THERE ARE NO RIGHTS UNDER THIS AGREEMENT FOR ANY THIRD PARTY BENEFICIARY. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
10.1. You agree to indemnify, defend and hold harmless Orblogic Inc, and its affiliates, officers, agents, and employees from and against any costs, damages, expenses (including reasonable attorney's fees), judgments, losses and other liabilities (including amounts paid in settlement) ("Liabilities") incurred as a result of any third-party action, claim, demand, proceeding or suit ("Claim") to the extent arising from or in connection with your use of the Software and/or Service in violation of this Agreement.
10.2. Orblogic agrees to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or connected with an allegation that your use of the Software and/or Service in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall Orblogic have any obligations or liability arising from: (a) use of the Software and/or Service in a modified form or in combination with materials or software not furnished by Orblogic, and (b) any User Content, information or Data provided by you, your end users, or other third parties.
10.3. A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnified party with all reasonable co-operation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim, grant such sole control, and/or provide such cooperation, information and assistance, shall not relieve the indemnifying party of its obligations under this Article 10, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
11.1. External Breach: In the event of a security breach, as defined by Applicable Law, by anyone other than your employee, contractor or agent, upon discovery of such breach, Orblogic will: (a) initiate remedial actions that are in compliance with Applicable Law and consistent with industry standards; and (b) notify you of the security breach, its nature and scope, the remedial actions Orblogic will undertake, and the timeline within which Orblogic expects to remedy the breach.
11.2. Internal Breach: In the event of a security breach, as defined by Applicable Law, by your employee, contractor or agent, you shall have sole responsibility for initiating remedial actions and shall notify Orblogic immediately of the breach and steps you will take to remedy the breach.
12.1. Unless otherwise agreed by you and Orblogic, during the Term, Orblogic may disclose your name as a customer of Orblogic and/or subscriber of the Service, and you hereby grant Orblogic the right to display your name, company, and logo in Orblogic's marketing materials and on Orblogic's public website, in each case in accordance with any branding guidelines you may provide to Orblogic.
13.1. Certain features of the Site may enable users to submit, upload, post, share, or display (hereinafter, "post") comments or content, as well as to interact with others through user comment areas, message boards, direct messages, and similar user-to-user areas, as applicable (such comments and content shall be collectively referred to as "User Content"). User Content includes any comments or reviews you provide to Orblogic about the Service, but excludes all Data.
13.2. You hereby grant to Orblogic an irrevocable, perpetual, non-exclusive, transferable, sublicensable, royalty-free, worldwide right and license to use, reproduce, display, perform, distribute, and prepare derivative works of any User Content you post on or through the Service for any purpose and in all forms and all media, whether now known or that become known in the future, and you waive any and all claims that you may have now or may hereafter have in any jurisdiction to any moral rights and all rights of "droit moral" in your User Content. If you post User Content, you represent and warrant to Orblogic that you own or control all rights in and to such User Content and have the right to grant the rights above to Orblogic.
14.1. As between the parties, Orblogic owns and shall retain all right, title and interest in and to (a) the Software and the Service, including all intellectual property rights, and (b) transactional and performance data related to your use of the Service. Orblogic may collect, use and disclose all such transactional and performance data for its business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you or your employees.
14.2. You retain all right, title and ownership interest in and to your Data. Orblogic has no right, title or interest in any personally identifiable information contained in or related to your Data.
14.3. You have no obligation to give Orblogic any suggestions, enhancement requests, recommendations, comments or other feedback ("Feedback") relating to the Service. To the extent you provide any Feedback to Orblogic, Orblogic may use and include any such Feedback to improve the Service or for any other purpose. Accordingly, if you provide Feedback, you agree that Orblogic shall own all such Feedback and Orblogic and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Service or other related technologies, and you hereby assign, irrevocably, exclusively and on a royalty-free basis, all such Feedback to Orblogic.
14.4. From time to time during the Term, Orblogic may develop, author or prepare custom documents, designs, computer programs, computer documentation and other tangible materials ("Deliverables"), in each case pursuant to a statement of work executed by you and Orblogic. Orblogic shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, non-transferable, non-sublicensable, non-exclusive license for you to use such Deliverables for your internal use during the Term. Orblogic may reuse any Deliverables, provided that such use does not reveal your identity or your confidential information.
15.1. Each Party shall comply with all Applicable Law in connection with its own activities under this Agreement. The Service can be configured and used in ways that do not comply with Applicable Laws and it is your sole responsibility to monitor your employee's use and your use of the Service to ensure that such use complies with and is in accordance with Applicable Law. In no event shall Orblogic be responsible or liable for your failure to comply with Applicable Law in connection with your use of the Service.
15.2. Orblogic does not provide its customers with legal advice regarding compliance, data privacy or other relevant Applicable Law in the jurisdictions in which you use the Service, and any statements made by Orblogic to you shall not constitute legal advice.
15.3. You acknowledge that Orblogic exercises no control over your specific human resource practices implemented using the Service or your decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee or authorized user of the Service. You further agree and acknowledge that Orblogic does not have a direct relationship with your employee's and that you are responsible for all contact, questions, Data updates and collection, with your employee's. In addition, you are responsible for the privacy (including adopting and posting your own privacy policies governing your treatment of your employee's Data), collection, use, retention and processing of your employee's Data, and providing any and all notices and information to your employee's regarding the foregoing, in compliance with all Applicable Laws. Orblogic hereby disclaims all liability arising from your decisions and from harmful data or code uploaded to the Service by you and/or your employees, contractors or agents.
15.4. You agree that you will not, directly or indirectly, ship, transfer, transmit, export or re-export, or knowingly permit any of the foregoing with respect to the Service or Software, or any technical information about the Service or Software, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States Government approval, unless the appropriate export license or approval has been obtained.
15.5. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
16.1. The "eSignature Service" is a service provided by Orblogic for two counterparties (usually a company, herein described as the "sending party", subscribing to Orblogic eSignature's services and an employee, employee-candidate or contractor) to electronically sign documents (including, but not limited to, agreements, policies, forms, etc.). If you use the eSignature Service offered by Orblogic, you acknowledge and agree to the statements set forth in this Section. Whenever you sign a document using Orblogic's eSignature Service you affirmatively consent to using electronic signatures via the eSignature Service and consent to conducting electronic business transactions. You also confirm that you are able to access the eSignature Service and the document you are signing electronically. When using the eSignature Service for a particular document, your consent applies only to the matter(s) covered by that particular document.
16.2. You are not required to use the eSignature Service or accept electronic documents provided thereby. If you are an employee, employee-candidate or contractor and you choose to not use the eSignature Service, you may still sign the document manually by notifying the sending party that you are choosing to do so and by obtaining a non-electronic copy of the document from them. Orblogic assumes no responsibility for providing you with a non-electronic version of the document. In the event you are choosing to sign the document manually, do not use the eSignature Service to sign the document or to return the document to the sending party.
16.3. If you have signed a document electronically using the eSignature Service and transmitted it back to the sending party, Orblogic will provide you the opportunity to download and print a paper copy of the document at no charge. If you later withdrawn your consent to using the eSignature Service, please notify the sending party and stop using the eSignature Service. Note that the decision to stop using the eSignature Service after you have already used it does not change the legality of the documents you have previously signed using an electronic signature.
16.4. When counterparties sign a document electronically using the eSignature Service, the rights and duties associated with that document are solely those of the counterparties. Orblogic is not a party to the document and carries no liability or responsibility with respect to the correctness, validity or enforcement of the document; nor does Orblogic have any liability or responsibility with respect to the legal or non-legal aspects of the document or any dispute arising as a result of the document. Orblogic's sole responsibility is the eSignature Service and customer service associated therewith.
16.5. PLEASE NOTE THAT ORBLOGIC'S STATEMENTS CONTAINED HEREIN OR ELSEWHERE CONCERNING THE VALIDITY OF ELECTRONIC DOCUMENTS AND/OR THE SIGNATURE LINES OF DOCUMENTS THAT ARE ELECTRONICALLY SIGNED ARE FOR INFORMATIONAL PURPOSES ONLY; THEY ARE GENERAL IN NATURE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. UNDER FEDERAL AND STATE LAWS GOVERNING ELECTRONIC SIGNATURES, ELECTRONIC SIGNATURES ON CERTAIN TYPES OF AGREEMENTS ARE NOT ENFORCEABLE. ORBLOGIC HEREBY DISCLAIMS ANY RESPONSIBILITY FOR ENSURING THAT DOCUMENTS ELECTRONICALLY SIGNED THROUGH ORBLOGIC'S ESIGNATURE SERVICE ARE VALID OR ENFORCEABLE UNDER THE LAWS OF THE UNITED STATES OF AMERICA, ANY PARTICULAR STATE, OR ANY OTHER LEGAL JURISDICTION. YOU SHOULD CONSULT WITH LEGAL COUNSEL CONCERNING THE VALIDITY OR ENFORCEABILITY OF ANY DOCUMENT YOU MAY SIGN ELECTRONICALLY USING ORBLOGIC’S ESIGNATURE SERVICE.
17.1. Relation of Parties. Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
17.2. Assignment. Neither party may assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement (other than the right to receive payments) without the other party's prior written consent, such consent not to be unreasonably withheld, except that Orblogic may assign this Agreement, without consent, in connection with a sale of all or substantially all of Orblogic's business or assets. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
17.3. Equitable Remedies and Injunctive Relief. Customer acknowledges and agrees that any breach by Customer of this Agreement other than a failure to pay sums due and owing to Orblogic, or any infringement, violation or misappropriation of the intellectual property rights of Orblogic may cause irreparable harm to Orblogic not reasonably compensable by money damages. Accordingly, Customer agrees that, in addition to all other remedies Orblogic may have at law, Orblogic shall be entitled to seek immediate equitable relief, including an injunction, against Customer in any court of competent jurisdiction in order to restrain Customer's breach of this agreement or infringement, violation or misappropriation of the intellectual property rights of Orblogic without the necessity for Orblogic to prove the likelihood of irreparable harm, or that damages are not an adequate remedy, and without any requirement by Orblogic to post bond or undertaking as to damages.
17.4. Notices. Except as maybe otherwise agreed between the parties, all notices related to this Agreement will be in writing and delivered to Orblogic and the Customer at the address as mentioned on the Order Form.
17.5. Governing Law and Venue. This Agreement shall be subject to, construed by and enforced in accordance with the laws of New Jersey and applicable federal laws of USA.
17.6. Dispute Resolution. Except for any dispute concerning breach of confidentiality or infringement of any intellectual property rights, which dispute will be subject to the exclusive jurisdiction of the Courts of New Jersey and the proper appeal courts from such courts, any dispute arising under this Agreement will be subject to binding arbitration by a single arbitrator with the American Arbitration Association ("AAA") in accordance with its relevant industry rules, if any. The arbitration will be held at Bergen County, New Jersey. The language of the arbitration shall be the English language. Judgment on any award rendered by the arbitrator may be entered in any Court of competent jurisdiction.
17.7. Severability. If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and, if the foregoing modification is not possible, it shall be severed from this Agreement, and the remaining portions of this Agreement will remain in full force and effect.
17.8. Force Majeure. Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control. Lack of funds does not entitle a party to claim force majeure.
17.9. Waiver. The waiver by any party of any breach of this Agreement will not be construed to be a waiver of any succeeding breach. All waivers must be in writing, and signed by the party waiving its rights.
17.10. Entire Agreement. This Agreement (including any Order Forms and SOW) constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter including any terms and conditions that may be mentioned on any purchase order or other similar pre-printed document issued by the Customer to Orblogic. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
17.11. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
17.12. Amendments. Orblogic may amend this Agreement by giving Customer prior notice of the amendment, which notice may be provided by e-mail to Customer’s email address of record with Orblogic or by posting in the Service.
18.1. A member of Orblogic's technical support help desk staff will be available to assist Customer with problems and questions regarding the Service. Orblogic will supply telephone and/or email support to Customer dependent on the Support Offering selected. Standard support is available Monday to Friday between 8:00 a.m. and 5:00 p.m. US EST. Premium Plus support service is available twenty-four (24) hours a day, seven (7) days a week.
18.2. Customer may contact Orblogic's technical support help desk via email at email@example.com, or by telephone at 1-888- 908-7724. Orblogic may, from time to time, develop additional methods for Customer to contact the help desk, and will make information regarding such methods available at Orblogic's website or in the Service.