Terms and Conditions
These Terms and Conditions (“Terms and Conditions”) and the applicable order form, which is hereby incorporated by reference (“Order Form,” and together with these Terms and Conditions, the “Agreement”) is entered into as of the date such Order Form is accepted by Ordoro, Inc., a Delaware corporation (“Ordoro”), by and between Ordoro and the Customer set forth on such Order Form (”Customer”).
Ordoro is a provider of a web-based order and web-based inventory management service (including the Site (defined below), the “Service”). Customer desires to obtain and Ordoro desires to provide Customer with access to the Service, pursuant to the Agreement.
- Provision of Service. Subject to the terms and conditions of this Agreement, including without limitation Customer’s payment of all of the fees due hereunder, Ordoro will provide Customer with access to the Service, to be delivered via the Internet at the website address www.ordoro.com (the “Site”) during the term of the Agreement. Customer may use the Service solely for its intended purpose in accordance with the Agreement.
- Account Protection. Customer and all Authorized Users shall protect the confidentiality of all Account information, including user names and passwords, and will not share such information with any person. In the event that an Authorized User becomes aware that the security of such party’s login information has been breached, the party shall immediately notify Customer and Customer shall immediately de-activate such Account or change the Account’s login information.
- Customer Assistance and Materials. Customer shall provide Ordoro with all information, assistance and materials as reasonably required for Ordoro to activate and operate the Service for Customer pursuant to this Agreement. Customer grants and agrees to grant to Ordoro a non-exclusive license to use, reproduce, display and distribute such information and materials in connection with the provision of the Service for Customer.
- Infrastructure. Ordoro may host the Service using its own infrastructure or it may engage a third party to host the Service on its behalf.
- Support and Maintenance. Ordoro will provide Customer with a reasonable amount of maintenance and support regarding use of the Service during the Term. Updates to the Service may be provided in Ordoro’s discretion at no additional charge to Customer. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by Ordoro. During such time, the Service may be unavailable. Emergency maintenance may be required at other times. Ordoro will use commercially reasonable efforts to promptly remedy any system failure and restore access to the Service.
- Restrictions and Customer Obligations. Customer and any Authorized Users may not, and may not permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service; (ii) use, evaluate or view the Service for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Service; (iii) use the service to violate and law or regulation; (iv) access or attempt to access another Customer’s or party’s data or confidential information; or (v) use the Service as a service bureau or any other manner to provide services for a third party. Neither Customer nor any Authorized User shall remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within the Service. Customer and its Authorized Users shall comply with all applicable law relating to its use of the Service.
FEES AND PAYMENT
- Fees. Customer shall pay Ordoro for use of the Service in accordance with the pricing set forth on our Pricing and Usage Table, as may be updated from time to time. CUSTOMER AUTHORIZES ORDORO TO CHARGE CUSTOMER’S CREDIT CARD OR OTHER PAYMENT METHOD IN ACCORDANCE WITH THIS AGREEMENT, REPRESENTS THAT IT HAS THE RIGHTS TO AUTHORIZE SUCH CHARGES AND PAYMENTS, AND SHALL BE RESPONSIBLE FOR PAYMENT IN THE EVENT THAT THE PAYMENT METHOD IS DECLINED, EXPIRED OR DISCONTINUED. All fees are non-refundable (irrespective of actual usage), and are due and payable in U.S. dollars via the mechanisms made available within the Service (e.g. credit card, PayPal, etc.). Unless otherwise agreed, fees are due in advance for the applicable period.
- Taxes. All fees are inclusive of applicable sales, excise, use or similar taxes.
- Late Payments. If payment is not made on the respective due date, Ordoro may charge Customer a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly. Should Customer not pay amounts when due, Ordoro may also (at its discretion and in addition to other remedies it may have) suspend Customer’s and Authorized Users’ access to the Service.
- Intellectual Property Ownership. Ordoro shall own all right, title, and interest in and to the Service, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. Customer agrees to assign all right, title, and interest it may have in the foregoing to Ordoro. Except for the express rights granted herein, Ordoro does not grant any other licenses, whether express or implied, to any Ordoro software, technology, or intellectual property.
- Data Ownership. Customer shall own all right, title, and interest in and to any data that is collected by Ordoro from Customer in connection with Customer’s use of the Service (“Data”). Customer grants and agrees to grant to Ordoro a perpetual, non-exclusive license to use such Data (a) in order to provide the Service to Customer; (b) for statistical use (provided that such data is not identifiable to Customer); and (c) as necessary to monitor and improve the Service. Customer acknowledges that to the extent it transmits account or payment information via the Service in payment therefor, the collection and use of such data may be governed by the terms of third party payment processors.
- Confidentiality. Customer acknowledges that the Service, the terms of this Agreement, and any other proprietary or confidential information provided to Customer by Ordoro (“Ordoro Confidential Information”) constitutes valuable proprietary information and trade secrets of Ordoro and/or its licensors. Ordoro acknowledges that the Data provided to Ordoro by Customer (“Customer Confidential Information”) constitutes valuable proprietary information and trade secrets of Customer. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section. Each receiving party agrees to promptly report any breaches of this section to the disclosing party.
LIMITATIONS OF LIABILITY
- Warranty Disclaimer. ORDORO DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE SERVICE OR ANY SUPPORT RELATED THERETO AND WITH RESPECT TO ANY INFORMATION PROVIDED VIA THE SERVICE, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING.
- Limitations of Liability. ORDORO SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, OR LOST OF INFORMATION, REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. IN NO EVENT SHALL ORDORO’S THE TOTAL COLLECTIVE LIABILITY FOR ALL CLAIMS UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE CLAIM.
- Allocation of Risk. The warranty disclaimers and limitations of liability set forth in this Agreement shall apply irrespective of any failure of essential purpose of any limited remedy. Customer and Ordoro each acknowledge and agree that the limitation of liability provisions of this section reflect an informed, voluntary allocation between them of the risk associated with Customer’s use of the Service and, but for this provision, Ordoro would not have made the Service available to Customer at the prices contemplated under this Agreement.
- Customer Indemnity. Customer shall indemnify, defend, and hold harmless Ordoro and its directors, employees, agents, and distributors from and against all damages and liabilities (including reasonable attorneys’ fees) that arise from a third party’s claim resulting from (a) unauthorized use of the Service or use or disclosure of Ordoro Confidential Information by Customer or any Authorized User, (b) use of the Service by Customer or any Authorized User in violation of the Agreement; (c) Customer or Authorized User violation of applicable law; (d) any data uploaded by Customer or an Authorized User; or (e) any activities of Customer or an Authorized User through the use the Service.
- Term. This Agreement will commence on the Effective Date and will continue for an initial term of one (1) month (the “Term”). Thereafter, Customer’s subscription to the Service and the Term of this Agreement will renew for successive periods of one (1) month, unless one party advises the other of its intent not to renew not less than ten (10) days prior to the applicable renewal date.
- Termination. In the event that either party is in material breach of this Agreement, and the non-breaching party does not cure such breach within ten (10) days following notice of such breach, then the non-breaching party may immediately terminate this Agreement by sending written notice to the breaching party.
- Effect of Termination. Upon termination of this Agreement, Customer and any Authorized Users must immediately stop using the Service, return or destroy any documentation provided to Customer. Upon termination of this Agreement, Sections 2.8,7 shall survive and remain in effect.
- Publicity. Customer agrees that Ordoro may include the name, logo, and success stories of Customer on Ordoro’s website, press releases, promotional and sales literature, and advertising materials.
- Independent Contractor. In performing under this Agreement, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
- Export. Customer agrees not to export or re-export any software included within the Service, either directly or indirectly, without Ordoro’s written consent and any required license from the appropriate governmental agency.
- Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, hacking, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes, or governmental demands or restrictions.
- Assignment. Either party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Any assignment in contravention of this subsection shall be void.
- Governing Law and Venue. This Agreement shall be governed by the laws of the State of Texas, U.S.A. (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). Further, the parties agree that any claim or cause of action under or relating to this Agreement shall be brought in the state or federal courts located in Travis County, Texas, and the parties agree to submit to the exclusive personal jurisdiction of such courts. If Customer is located outside of the United States, and except for any claims for temporary or permanent injunctive relief, any and all disputes, controversies or claims arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“Rules”) in effect on the date of this Agreement by a single arbitrator appointed in accordance with said Rules. The appointing authority shall be the American Arbitration Association. The place of arbitration shall be Austin, Texas. The arbitration shall be conducted in the English language. The determination of the arbitrator shall be final and binding upon the parties to the arbitration. Judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer of the Service and any documentation, no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein this Agreement. All other use is prohibited. Further, the Service and any documentation was developed at Ordoro's private expense and is commercial in nature. By using, receiving, or downloading the Service and any documentation, the Government user agrees to the terms and conditions contained in this Agreement including the terms and conditions contained in this paragraph.
- Entire Agreement. This Agreement, including the Order Form, constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. From time to time the parties may enter into addenda or supplemental terms regarding particular Service offerings. Any such addenda, supplements or other amendments to this Agreement shall only be valid if in writing and signed by an authorized representative of each party, or agreed by a Customer representative via a click-to-accept mechanism presented upon log-in to the Service.
- Miscellaneous. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement. Other than the Order Form nothing contained in any purchase order or other Customer document shall in any way modify this Agreement or add any additional terms or conditions. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original shall be substituted and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect its original intent. This Agreement is in the English language only, and the English language version shall control in all respects. In the event that this Agreement is translated into another language, such translation shall not be binding upon the parties. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof.