Ori Global Cloud User Agreement
Ori Industries 1 Ltd
This Ori Global Cloud User Agreement, including all documents and terms incorporated by reference herein (collectively, the “Agreement”), is entered into by and between Ori Industries 1 Ltd, a United Kingdom company with its principal place of business at Tintagel House, 92 Albert Embankment, London, SE1 7TY, UK (“Company”) and the organisation you identified on Ori’s Website when you registered to use the Service (“Customer”). This Agreement is effective on the date you registered to use the Service (the “Effective Date”).
By registering to use the service, you agree to the terms and conditions of this agreement as an individual or on behalf of your organisation. You represent and warrant that you have the legal authority to bind yourself and/or your organisation to this agreement, and that you have read and understood this agreement. If you do not have such authority, or if you or your organisation does not agree with the terms of this agreement, you should not accept it.
“Affiliate” means with respect to a Party, any person or entity that controls, is controlled by, or is under common control with such Party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities.
“Authorised User” means a named individual that: (a) is an employee, representative, consultant, contractor or agent of Customer or a Customer Affiliate; (b) is authorised to use the Service pursuant to this Agreement; and (c) has been supplied a user identification and password by Customer.
“Customer Data” means any electronic data or materials provided or submitted by Customer or Authorised Users to or through the Service.
“Documentation” means the online help materials, including technical specifications, describing the features and functionality of the Service, which are located on the Company’s publicly-available website at https://ori.co, as updated by the Company from time to time.
“Intellectual Property Rights” means all current and future worldwide intellectual property rights, including without limitation, all patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection, and all applications and registrations for any of the foregoing.
“Service” means the applicable version of the Company’s Ori Global Cloud hosted software application.
“Subscription Term(s)” means, unless a different period is specified on the the Company web page where Customer registers for the Service, a subscription period(s) of one (1) year during which Authorised Users may use the Service, subject to the terms of this Agreement.
“Support Services” means the maintenance and support services provided by the Company to Customer during the Subscription Term, as more fully described in Section 2.3 below.
- LICENCE AND SUPPORT SERVICES
- Licence and Access Rights to the Service. The Company will host the Service and will make the Service available to Customer during the Subscription Term(s), subject to the terms and conditions of this Agreement. The Service is offered to the Customer at no cost, unless the Customer has selected a paid version of the Software. Customer’s access and usage of the Service may not exceed the defined limits of the Service, and may not interfere with other users’ utilisation of the Service. the Company may update the content, features, functionality, and user interface of the Service from time to time in its sole discretion, and may discontinue or suspend all or any portion of the Service at any time in its sole discretion, including during a Subscription Term; provided, that the Company will give Customer at least fifteen (15) days’ advance notice before discontinuing the Service or materially decreasing the functionality of the Service during the Subscription Term. The Company grants the Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement) right to access and use the Service and its Documentation during the Subscription Term, solely for Customer’s internal business purposes. Customer may permit its Affiliates to use and access the Service and Documentation in accordance with this Agreement, but Customer will be responsible for the compliance of all Affiliates with this Agreement. For the avoidance of doubt, the Service is available only on a hosted basis, and the Customer will not independently possess, run, or install the Service.
- Restrictions. Except as otherwise expressly set forth in this Agreement, Customer will not and will not permit any third party to: (a) sublicense, sell, transfer, assign, distribute or otherwise grant or enable access to the Service in a manner that allows anyone to access or use the Service without an Authorised User subscription, or to commercially exploit the Service; (b) copy, modify or create derivative works based on the Service; (c) reverse engineer or decompile the Service (except to the extent permitted by applicable law and only if the Company fails to provide permitted interface information within a reasonable period of time after Customer’s written request); (d) copy any features, functions or graphics of the Service; (e) allow Authorised User subscriptions to be shared or used by more than one individual Authorised User (except that Authorised User subscriptions may be reassigned to new Authorised Users replacing individuals who no longer use the Service for any purpose, whether by termination of employment or other change in job status or function); or (f) access to or use of the Service: (i) to send, store, or serve as the infrastructure to facilitate infringing, obscene, threatening, or otherwise unlawful, unethical and/or potentially harmful material, including without limitation incitements to violence, defamatory material, public disinformation campaigns, and/or material violative of third-party privacy rights; (ii) in violation of applicable laws; (iii) to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (iv) in a manner that interferes with or disrupts the integrity or performance of the Service (or the data contained therein); (v) to gain unauthorised access to the Service (including unauthorised features and functionality) or its related systems or networks; (vi) Circumvent defined limits on an account in an unauthorised manner; (vii) Abuse referrals, promotions or credits to get more features than paid for; or (viii) Access, search, or create accounts for the Service by any means other than the Company’s publicly supported interfaces (for example, “scraping” or creating accounts in bulk).
- Support Services. During the Subscription Term, the Company will provide limited email support for the Service, which Customer may request by emailing the Company at [email protected] Customer agrees to request support only for the Service licensed under this Agreement.
- Usage Limits. Use of the Service is subject to any usage limits, which may include limitations on features and functionality, that are set forth on the Company webpage where the Customer registered for the Service. If Customer exceeds any such limits, Customer will promptly notify the Company and work with the Company to promptly change its usage to comply with the limits. The Company may periodically verify that Customer’s use of the Service is within the applicable usage limits, and Customer will promptly and accurately certify and/or provide evidence of Customer’s compliance with the applicable usage limits as may be requested by the Company from time to time.
- CUSTOMER RESPONSIBILITIES FOR CUSTOMER DATA AND AUTHORISED USERS. Customer agrees to promptly notify the Company of any unauthorised access to Authorised User accounts of which Customer becomes aware. Customer has exclusive control and responsibility for determining what data Customer submits to the Service, for obtaining all necessary consents and permissions for submission of Customer Data and processing instructions to the Company, and for the accuracy, quality and legality of Customer Data. Customer is further responsible for the acts and omissions of Authorised Users in connection with this Agreement, for all use of the Service by Authorised Users, and for any breach of this Agreement by Authorised Users. The Customer will use reasonable measures to prevent and will promptly notify the Company of any known or suspected unauthorised use of Authorised User access credentials.
- INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
- Ownership. The Service and Documentation, all copies and portions thereof, and all Intellectual Property Rights therein, including, but not limited to derivative works therefrom, are and will remain the sole and exclusive property of the Company notwithstanding any other provision in this Agreement. Customer is not authorised to use (and will not permit any third party to use) the Service, Documentation or any portion thereof except as expressly authorised by this Agreement.
- Licence to Customer Data. Customer grants the Company a worldwide, non-exclusive licence to host, copy, process, transmit and display Customer Data as reasonably necessary for the Company to provide the Service in accordance with this Agreement. Subject to this limited licence, as between Customer and the Company, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Customer Data.
- Use of Aggregate Information. the Company may collect and aggregate data derived from the operation of the Service (“Aggregated Data”), and the Company may use such Aggregated Data for purposes of operating the Company’s business, monitoring performance of the Service, and/or improving the Service; provided, that the Company’s use of Aggregated Data does not reveal any Customer Data, Customer Confidential Information, or personally identifiable information of Authorised Users.
- TERM; TERMINATION
- Effective Date and Term. This Agreement commences on the Effective Date. Unless earlier terminated pursuant to the terms of this Section 5, the Agreement will continue through the Subscription Term. Unless one party notifies the other more than fifteen (15) days before the end of a Subscription Term, each Subscription Term will automatically renew for an additional Subscription Term of the same length.
- Termination for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party: (a) if the other Party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within fifteen (15) days after written notice of such default to the other Party; or (b) if the other Party (i) terminates or suspends its business, (ii) becomes subject to any insolvency proceeding under federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise. For the avoidance of doubt, termination of this Agreement will result in the termination of all Subscription Terms.
- Termination for Convenience; Suspension. Either Party may terminate this Agreement for any reason or no reason by providing the other party at least fifteen (15) days prior written notice. In addition, the Company may discontinue or suspend Customer’s access to the Service immediately if Customer has (or the Company reasonably suspects that Customer has) breached Section 2.2 or infringed the Company’s Intellectual Property Rights.
- Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) the Company’s obligation to provide Support Services and the Service will terminate, (b) all of Customer’s and its Authorised Users’ rights to use the Service will terminate, and (c) the provisions of Sections 4.3, 6.4, 7, 8, 9, and 10 of this Agreement will survive such expiration or termination.
- Treatment of Customer Data Following Expiration or Termination. Customer agrees that following termination of this Agreement, the Company may immediately deactivate Customer’s account(s) for the Service, and the Company has the right to delete those accounts, including all Customer Data, from the Company’s site unless legally prohibited. Customer acknowledges and agrees that it is responsible to retrieve Customer Data from the Service prior to expiration of this Agreement.
- REPRESENTATIONS AND WARRANTIES
- By Each Party. Each Party represents and warrants that it has the power and authority to enter into this Agreement and that its respective provision and use of the Service is in compliance with laws applicable to such Party.
- Conformity with Documentation. the Company warrants that, during the Subscription Term, the Service will perform materially in accordance with the applicable Documentation. In the event of a material breach of the foregoing warranty, Customer’s exclusive remedy and the Company’s entire liability will be for Customer to request the Company’s assistance through the Support Services, which the Company will provide in accordance with its obligations under Section 2.3 (“Support Services”).
- Malicious Code. The Company warrants that, to the best of its knowledge, the Service is free from, and the Company will not knowingly introduce, software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm.
- Warranty disclaimers. Except for the exclusive warranties set forth in this section 6, to the maximum extent permitted under applicable law, the service is provided “as is” without warranty of any kind, and the Company makes no warranties, express, implied, statutory, or otherwise, with regarding or relating to the service, documentation or support services. The Company specifically and explicitly disclaims all other warranties, express and implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, non-infringement, those arising from a course of dealing or usage or trade, and all such warranties are hereby excluded to the fullest extent permitted by law. further, The Company does not warrant the service will be error-free or that the use of the service will be uninterrupted.
- By the Company. Subject to the remainder of this Section 7 and the liability limitations set forth in Section 8, the Company will: (a) defend Customer against any third party claim that the Service infringes any trademark or copyright of such third party, enforceable in the jurisdiction of Customer’s use of the Service, or misappropriation of a trade secret (but only to the extent that such misappropriation is not a result of Customer’s actions) (“Infringement Claim”); and (b) indemnify Customer against and pay any settlement of such Infringement Claim consented to by the Company or any damages finally awarded against Customer to such third party by a court of competent jurisdiction. The Company will have no obligation and assumes no liability under this Section 7 or otherwise with respect to any claim to the extent based on: (a) any modification of the Service that is not performed by or on behalf of the Company, or was performed in compliance with Customer’s specifications; (b) the combination, operation or use of the Service with any Customer Data or any Customer or third party products, services, hardware, data, content, or business processes not provided by the Company where there would be no Infringement Claim but for such combination; (c) use of the Service other than in accordance with the terms and conditions of this Agreement and the Documentation; or (d) Customer’s or any Authorised User’s use of the Service other than as permitted under this Agreement Service. This section 7 states customer’s sole and exclusive remedy and the Company entire liability for any infringement claims or actions.
- Remedies. Should the Service become, or in the Company’s opinion be likely to become, the subject of an Infringement Claim, the Company may, at its option (i) procure for Customer the right to use the Service in accordance with this Agreement; (ii) replace or modify, the Service to make it non-infringing; or (iii) terminate Customer’s right to use the Service and discontinue the related Support Services.
- By Customer. Customer will defend, indemnify and hold harmless the Company and its Affiliates, and their directors, officers, employees, agents and licensors, from and against any damages and costs (including reasonable attorneys’ fees and costs incurred by the indemnified parties) finally awarded against them in connection with any claim arising from (i) Customer’s use of the Service or (ii) Customer Data; provided, that Customer will have no obligation under this Section 7.3 to the extent the applicable claim arises from the Company’s breach of this Agreement.
- Indemnity Process. Each Party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying Party; (b) giving the indemnifying Party sole control of the defence and settlement of the claim; and (c) providing to the indemnifying Party all available information and assistance in connection with the claim, at the indemnifying Party’s request and expense. The indemnified Party may participate in the defence of the claim, at the indemnified Party’s sole expense (not subject to reimbursement). Neither Party may admit liability for or consent to any judgement or concede or settle or compromise any claim unless such admission or concession or settlement or compromise includes a full and unconditional release of the other Party from all liabilities in respect of such claim.
- LIMITATION OF LIABILITY
- Damages Exclusion; Liability Cap. In no event will either Party or its Affiliates or Licensors be liable under this Agreement for any consequential, incidental, special, indirect, punitive or exemplary damages, including without limitation lost profits, loss of use, business interruptions, loss of data, revenue, goodwill, production, anticipated savings, or costs of procurement of substitute goods or services, whether alleged as a breach of contract or tortious conduct, including negligence, even if a Party has been advised of the possibility of such damages. Except with respect to liability arising from its obligations under section 7 (“indemnification”) (for which the liability limitation is one hundred thousand dollars ($100,000) in the aggregate), in no event will the Company total aggregate liability arising under this agreement exceed ten thousand dollars ($10,000). Nothing in this section 8.1 will be deemed to limit either party’s liability for willful misconduct, gross negligence, fraud, or infringement by one party of the other’s intellectual property rights.
- Limitations Fair and Reasonable. Each Party acknowledges that the limitations of liability set forth in this Section 8 reflect the allocation of risk between the Parties under this Agreement, and that in the absence of such limitations of liability, the economic terms of this Agreement would be significantly different.
- CONFIDENTIAL INFORMATION
- Confidentiality. “Confidential Information” means this Agreement, the Service, the Company pricing information, the Company technical information, Customer Data and any other information disclosed by one party (“Discloser”) to the other (“Recipient”) in connection with this Agreement 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. Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder. Recipient will not disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorised use and disclosure, and in any case will not use less than the degree of care a reasonable person would use. The foregoing will not apply to any information that: (a) was in the public domain at the time it was communicated to the Recipient by the Discloser; (b) entered the public domain subsequent to the time it was communicated to the Recipient by the Discloser through no fault of the Recipient; (c) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated to the Recipient by the Discloser; (d) was rightfully communicated to the Recipient free of any obligation of confidence subsequent to the time it was communicated to the Recipient by the Discloser; (e) it was developed by employees or agents of the Recipient independently of and without reference to any information communicated to the Recipient by the Discloser; or (f) is expressly permitted to be disclosed pursuant to the terms of this Agreement.
- Compelled Disclosure. The Recipient will not be in violation of Section 9.1 regarding a disclosure that was in response to a valid order by a court or other governmental body, provided that the Recipient provides the Discloser with prior written notice of such disclosure in order to permit the Discloser to seek confidential treatment of such information.
- Feedback. To the extent Customer provides any suggestions, recommendations or other feedback specifically relating to the Service or Support Services (collectively, “Feedback”), Customer grants to the Company a royalty free, fully paid, sub-licensable, transferable (notwithstanding Section 10.1 (“Assignment”), non-exclusive, irrevocable, perpetual, worldwide right and licence to make, use, sell, offer for sale, import and otherwise exploit Feedback (including by incorporation of such Feedback into the Service without restrictions).
- Sensitive Data. Customer agrees that it will not submit the following types of information to the Service except with the Company’s prior written approval: government-issued identification numbers, consumer financial account information, credit and payment card information, personal health information, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs) or personal data (as described in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data) of data subjects that reside in the European Economic Area (EEA). If Customer wishes to submit any such European personal data to the Service, Customer will notify the Company and the parties may enter into a separate data processing agreement (including the European Commission’s Standard Contract Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection) with the Company prior to submission of such personal data to the Service. Customer represents and warrants that it has obtained all necessary consents and permissions from data subjects for the submission and processing of personal data in the Service.
- Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assignor under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially of the assigning Party’s assets, provided that the assignee has agreed to be bound by all of the terms of this Agreement and all fees owed to the other Party are paid in full. If Customer is acquired by, sells substantially all of its assets to, or undergoes a change of control in a favour of, a direct competitor of the Company, then the Company may terminate this Agreement immediately upon written notice.
- Anti-Corruption. Each Party acknowledges that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act (“FCPA”) and the U.K. Bribery Act.
- Notices. Notices to a Party will be sent by first-class mail, overnight courier or prepaid post to the address for such Party as identified on the first page of this Agreement and will be deemed given seventy-two (72) hours after mailing or upon confirmed delivery or receipt, whichever is sooner. The Customer will address notices to the Company Legal Department, with a copy to [email protected] Either Party may from time to time change its address for notices under this Section by giving the other Party at least thirty (30) days prior written notice of the change in accordance with this Section 10.3.
- Non-waiver. Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
- Governing Law. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
- Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it will be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
- Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the Parties hereto. Neither Party has any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether expressed or implied, or to bind the other Party in any respect whatsoever. Each Party may identify the other as a customer or supplier, as applicable.
- Export Laws. Each Party will comply with the export laws and regulations of the United Kingdom and other applicable jurisdictions in providing and using the Service. Without limiting the generality of the foregoing, Customer represents that it is not named on any UK government denied-party list and will not make the Service available to any user or entity that is located in a country that is subject to a UK government embargo, or is listed on any UK government list of prohibited or restricted parties.
- Entire Agreement; Execution. This Agreement comprises the entire agreement between Customer and the Company, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the Parties regarding its subject matter. In the event of a conflict between the terms of this Agreement and any other document referenced in this Agreement, this Agreement will control. Any pre-printed terms on any Customer ordering documents or terms referenced or linked therein will have no effect on the terms of this Agreement and are hereby rejected, including where such Customer ordering document is signed by the Company. This Agreement may be executed in counterparts, which taken together form one binding legal instrument. The Parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement will be legally binding with the same force and effect as manually executed signatures.