Terms of Use Software/Service
ALL USE OF ANY AND ALL ORBOGRAPH SOFTWARE (“SOFTWARE”) AND THE AFFILIATED ORBOGRAPH SERVICES (COLLECTIVELY REFERRED TO AS “SERVICES”) ARE SUBJECT TO THESE TERMS OF USE AND IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. EXCLUSION OF WARRANTY
User acknowledges that the Services and any related Software are of such complexity that they may have inherent or other defects and OrboGraph and all other third party suppliers (herein after collectively referred to as “OrboGraph”) does not warrant that the operation of any software shall be error-free or that it will meet the requirements of User.
ORBOGRAPH MAKES NO WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES AND THE SERVICES ARE PROVIDED “AS IS”. ORBOGRAPH EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY STATUTE, CUSTOM OR TRADE USAGE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ORBOGRAPH HEREBY EXCLUDES LIABILITY FOR ANY AND ALL LOSSES OF ANY NATURE, TO THE FULLEST EXTENT PERMITTED BY LAW.
2. COMPLIANCE WITH LAWS
The Services shall be used only for lawful purposes. In using the Services, User shall (i) comply with all applicable laws and regulations (including, without limitation, laws and regulations governing privacy, transmission of financial data, and other such laws and regulations) and codes of conduct; or (ii) not infringe the rights of any third party (including intellectual property rights). User acknowledges that if during the course of providing Services, OrboGraph comes into possession of information and data regarding User and its clients (“User Data”). User Data shall include, but not be limited to personally identifiable financial information. User warrants that it has obtained and will obtain all legally required consents and permissions from relevant parties (including its customers and clients and data subjects) for the use, processing and transfer of User Data as described herein.
3. LICENSE
Subject to these Terms of Use, OrboGraph grants to User, a non-exclusive, non-transferrable, worldwide, revocable, personal license to use the Software in connection with the Services. The Software is licensed, not sold. OrboGraph and its licensors retain all right, title and interest in and to the Software, and they reserve all rights in the Software not expressly granted under these terms of use. Any modifications, corrections or enhancements, and any related materials and documentation (and all proprietary rights therein, including, but not limited to, copyrights) to the Software, no matter by who made shall belong exclusively to OrboGraph or its licensors.
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. User may not (and may not allow any third party to) otherwise use, and may not (and may not allow any third party to) copy, distribute, perform, display, modify, translate or prepare derivative works of the Software and User may not (and may not allow any third party to) reverse engineer, decompile, or disassemble the Licensed Software. User may not (and may not allow any third party to) rent, lease or lend the Software or use it on a network or make it available on a time-sharing basis except as authorized in writing by OrboGraph. User may not (and may not allow any third party to) disclose or use for internal software development purposes the results of any benchmarking of the Software without OrboGraph’s prior written consent, nor attempt to circumvent any user limits, gate count limits, security, locking mechanism or other technical means used by OrboGraph to prevent unauthorized use, reproduction or distribution of the Software, or remove or obscure any proprietary rights notices placed on the Software by OrboGraph.
4. LIMITATION OF DAMAGES AND INDEMNIFICATION
WITHOUT LIMITING ORBOGRAPH’S EXCLUSION OF LIABILITY, IN NO EVENT SHALL ORBOGRAPH BE LIABLE FOR ANY CONSEQUENTIONAL DAMAGES (INCLUDING LOSS OF USE, INTERUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA) OR ANY INDIRECT, SPECIAL, PUNITIVE, OR INCIDENAL DAMAGES OF ANY KIND, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT SHALL ORBOGRAPH’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE) EXCEED THE LESSER OF US$10,000 OR THE AMOUNTS PAID TO ORBOGRAPH FOR THE SERVICE GIVING RISE TO A CLAIM IN THE TWELVE MONTHS PRECEDING THE DATE OF SUCH CLAIM. NOTWITHSTANDING ANY LANGUAGE IN THESE USE OF TERMS TO THE CONTRARY, IN NO EVENT SHALL ORBOGRAPH’S THIRD PARTY PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIONAL DAMAGES (INCLUDING LOSS OF USE, INTERUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA) OR ANY SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. User agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with the Services and that the fees payable under these terms of use have been calculated on the basis that OrboGraph shall exclude liability as set out in this section. User agrees to indemnify and hold OrboGraph, its agents representatives, suppliers and subcontractors and their respective officers, directors and employees harmless from any and all claims of any nature, including reasonable attorneys fees and costs, arising from or related to User’s use of the Service.
5. CONFIDENTIALITY
Without limiting the terms of any non-disclosure agreement between the parties, User shall hold confidential OrboGraph’s confidential or proprietary information (“Confidential Information”).The prices for the Services and any non-public data provided to User or User affiliates regarding performance of the Software or Services shall be deemed OrboGraph Confidential Information. User shall not disclose Confidential Information to third parties without OrboGraph’s written consent, except as permitted pursuant hereto. User shall disseminate Confidential Information only to its affiliates, employees, representatives, subcontractors and advisors agreeing to be bound by the requirements hereof, and only on a need-to-know basis. User shall use such Confidential Information only for the purpose of intended. To the extent User is required by applicable law, regulation, governmental agency or court order, subpoena, discovery request, or investigative demand to disclose the existence of terms of these Terms of Use, or other Confidential Information, User shall use its reasonable efforts to minimize such disclosure, to obtain an assurance that the recipient shall accord confidential treatment to such Confidential Information, and (to the extent permitted by applicable law) to notify OrboGraph prior to such disclosure in order that OrboGraph will have an opportunity to legally prevent or limit such disclosure. User shall (i) use the Confidential Information received solely for the purposes intended and for no other purposes whatsoever; (ii) establish adequate administrative, technical and physical safeguards to insure the security and confidentiality of User Data; protect against any anticipated threats or hazards to the security or integrity of User Data; and protect against unauthorized access to or use of such User Data; (iii) refrain from copying or disclosing, directly or indirectly, any User Data, to any third party, except to its employees who have a need to know the User Data in order to provide Services and who have undertaken in writing to maintain the confidentiality of such information. User shall be responsible for the compliance by its employees with the terms hereof. This section shall survive any termination or expiration of these Terms of Use.
6. SEVERABILITY; SURVIVAL; WAIVER
Any term or provision of these Terms of Use that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. Should any term or provision of be or become invalid or unenforceable or should these Terms of Use contain an omission, the validity or enforceability of the remaining terms or provisions shall not be affected. In such case, subject to the next following sentence, the parties shall immediately commence to negotiate in good faith in order to replace the invalid or unenforceable term or provision by such other valid or enforceable term or provision which comes as close as possible to the original intent and effect of the invalid or unenforceable term or provision, or respectively, to fill the omission by inserting such term or provision which the parties would have reasonably agreed to, if they had considered the omission at the date hereof. In the event that any term or provision as aforesaid is invalid, void or unenforceable by reason of its scope, duration or area of applicability or some similar limitation as aforesaid, then the court or arbitrator making such determination shall have the power to reduce the scope, duration, area or applicability of the term or provision so that they shall be enforceable to the maximum scope, duration, area or applicability permitted by applicable law which shall not exceed those specified in these Terms of Use or to replace such term or provision with a term or provision that comes closest to expressing the intention of the invalid or unenforceable term or provision. All provisions of these Terms of Use that by their nature should survive the termination or expiration of these Terms of Use shall survive the termination or expiration of these Terms of Use. Except as specifically provided herein, no remedy made available to OrboGraph hereunder is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy provided hereunder or available at law or in equity. No failure on the part of OrboGraph to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy granted herein.
7. MODIFICATION AND TERMINATION
OrboGraph reserves the right to modify any Service without notice to Users. OrboGraph may, in its sole discretion, terminate or suspend the Services to any User and/or refuse all current or future use of the Service by User, all upon ten (10) days prior written notice and/or terminate any Service upon ten (10) days notice. OrboGraph may, at any time, in its sole discretion, modify the terms and conditions upon which it allows Users to use the Services.
IF ANY MODIFICATION IS UNACCEPTABLE TO USER, USER’S ONLY RECOURSE IS TO TERMINATE USE OF THE SERVICE AND OBTAIN A REFUND OF ANY UNUSED PORTION OF PAID FEES. USER’S CONTINUED USE OF THE SERVICE OR ANY OF THE SERVICES FOLLOWING ORBOGRAPH’S POSTING OF A CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
8. NOTICES
All notices hereunder will be in writing and given delivered by first class registered or certified mail (airmail if international) postage prepaid, electronic mail, cable, telex or facsimile or other reliable method of transmission. Notices will be deemed received by the receiving party within seven (7) days of mailing, if mailed and on the first business day (at the receiving end) following transmission.
9. RELATIONSHIP OF PARTIES
Nothing contained in these Terms of Use shall be construed as creating a joint venture, partnership or employment relationship between the parties, nor shall either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other party.
10. FORCE MAJEURE
Neither party shall be liable for any delay or failure in performance due to reasons of Force Majeure, which shall include acts of God, earthquake, fire, labor disputes, riots, war, epidemics, acts or omissions of vendors or suppliers, changes in law or regulation, action by government or other competent authority, transportation difficulties, or other causes that are beyond its reasonable control.
11. GOVERNING LAW AND JURISDICTION
Any dispute arising out of or relating these Terms of Use, or the breach thereof, shall be governed by the laws of the Commonwealth of Massachusetts without regard to or application of choice of law or conflict of law rules or principles. The parties acknowledge that the state or Federal courts within Massachusetts are the sole appropriate and acceptable forum and venue for any legal action necessary to construe or enforce any term or provision of this Agreement and the parties consent to the exclusive jurisdiction of such courts and consent to the service of process by registered mail.
12. ENTIRE AGREEMENT
These Terms of Use set forth the entire and exclusive agreement between the parties, superseding all prior or contemporaneous representations, agreements or understandings concerning the subject matter addressed therein.