These Terms of Service (this “Agreement”) is made between you (either an individual or an entity, referred to herein as “Customer”) and Ordoro, Inc., a Delaware corporation (“Ordoro”). Ordoro is a provider of a web-based order and web-based inventory management services, including the website at www.ordoro.com (the “Site”), services described in a mutually agreed to order form that is subject to this TOS (“Order Form”), mobile applications, and all related software, content, and services, including all versions and upgrades thereto (collectively, the “Service”). Your use of the Service is subject to and governed by the terms and conditions in this Agreement.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SERVICE.
THIS AGREEMENT REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, OR CUSTOMER’S ACCESS TO OR USE OF THE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS AGREEMENT (EACH, A “Claim”), AND CUSTOMER AGREES THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION F.6. CAREFULLY TO UNDERSTAND THE RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
Customer represent and warrant that it: (a) is of legal age to form a binding contract; (b) has the right, authority, and capacity to agree to and abide by this Agreement; and (c) is not barred from using the Service under the laws of any applicable jurisdiction. THE SERVICE IS NOT INTENDED FOR USERS UNDER THE AGE OF 13, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICE, AND BY TAKING SUCH ACTIONS CUSTOMER AGREES, REPRESENTS, AND WARRANTS THAT IT IS 13 YEARS OF AGE OR OLDER.
- Provision of Service. Subject to and conditioned on Customer’s compliance with this Agreement, including without limitation Customer’s payment of all of the fees due hereunder, Ordoro grants Customer a personal, non-exclusive, non-transferable, non-sublicensable, revocable right to access the Service, during the Term of the Agreement solely for its internal business purposes to ship goods and manage its inventory. Customer’s access to and use of the Service must comply with all usage guidelines posted by Ordoro on the Service.
- Authorized User Accounts. Customer may establish accounts (“Accounts”) for Customer’s employees or independent contractors who use the Service on behalf of Customer (“Authorized Users”). Authorized Users shall at all times abide by the terms set forth herein. Customer shall immediately notify Ordoro in the event that Customer becomes aware of any violation of the terms of the Agreement. Customer shall be responsible and liable for all breaches of this Agreement by an Authorized User.
- 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 other party. In the event that Customer or an Authorized User becomes aware that the security of such party’s login information has been breached or of any other unauthorized use of such information, Customer shall immediately notify Ordoro 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 will not, and will not permit any third party to:
- use, copy, reproduce, modify, translate, prepare derivative works of, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Service;
- de-compile, reverse engineer, disassemble, or otherwise attempt to derive source code, algorithms or other trade secrets from, the Service;
- 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;
- interfere with or disrupt the integrity or performance of the Service, including by disrupting the ability of any other person to use or enjoy the Service;
- use the Service for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights violate and law or regulation, or otherwise violate any applicable local, state, provincial, federal or international law or regulation;
- take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
- use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service or content therein; or download, reproduce, or archive any portion of the Service or its content.
- access or attempt to access another user’s or party’s data or confidential information;
- use or provide use of the Service as a service bureau rental or managed services basis, provide or permit other individuals or entities to create Internet "links" to the Service or "frame" or "mirror" the Service on any other server, or wireless or Internet-based device; or
- develop, market, sell or distribute any product or service that competes with or includes features substantially similar to the Service.
- 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.
- Ordoro’s failure to enforce any of the restrictions or guidelines in this Section A.7. shall not act as a waiver for any future enforcement, will not be considered a breach of this Agreement by Ordoro, and does not create a private right of action for any other party.
- Fees. Customer shall pay Ordoro for use of the Service in accordance with the pricing and payment terms set forth in the applicable Order Form, or in the absence of an Order Form, with the pricing and payment terms at https://www.ordoro.com/pricing, as may be updated from time to time. In the absence of an Order Form with different payment terms, 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 rights, titles, and interests 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, and Ordoro retains and reserves all rights not expressly granted in this Agreement.
- Trademarks. You may not use the Ordoro names, brands, trademarks, service marks and logos available on the Service (“Marks”). Customer will not remove or alter the Marks or any proprietary notices on the Service. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name of the Customer or any third party. Customer may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Ordoro. Customer will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Ordoro’s benefit.
Data Ownership. Ordoro may collect data from Customer in connection with Customer’s use of the Service (“Customer Data”). Customer hereby grants to Ordoro a perpetual, non-exclusive license to use such Customer Data (a) in order to provide the Service to Customer; (b) for statistical use (provided that such data is aggregated with information from other users or otherwise de-identified in a manner that does not allow such Customer Data to be separated from the aggregate data and identified as originating from 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, the collection and use of such data may be governed by the terms of third party payment processors. Customer represents and warrants that: (i) it has all necessary rights and authority to provide the Customer Data to Ordoro; and (ii) the submission of the Customer Data to Ordoro does not violate any duty of confidentiality owed to another party, and the Customer Data does not infringe the copyright, trademark, right of privacy, right of publicity or any other right of any other party.
- To the extent Customer Data consists of the personal data of Customer’s employees, customers, users or other individuals for whom Customer is the controller of such Customer Data, Ordoro will process such personal data in accordance with the Data Processing Addendum available at https://www.ordoro.com/dpa.
- Confidentiality. Customer acknowledges that the Service, the terms of this Agreement and all Order Forms, and any other proprietary or confidential information provided to Customer by Ordoro (“Ordoro Confidential Information”) constitutes valuable proprietary information of Ordoro or its licensors. Ordoro acknowledges that the Customer Data provided to Ordoro by Customer (“Customer Confidential Information”) constitutes valuable proprietary information 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 or as otherwise set forth herein, and by protecting such Confidential Information to the same degree that such party uses to protect its own similar proprietary and confidential information, but in no event less than reasonable care. Each receiving party agrees to promptly report any breaches of this section to the disclosing party.
- If Customer provides or makes available to Ordoro any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Feedback”), Ordoro shall be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, sublicense, make, have made, assign, pledge, transfer, assign or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer.
- Warranty Disclaimer. THE SERVICE IS PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ORDORO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. ORDORO MAKES NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND CUSTOMER MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
- Limitations of Liability. ORDORO SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA OR GOODWILL, REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING OR SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL ORDORO’S THE TOTAL 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 EVENTS GIVING RISE TO THE CLAIM(S).
- Allocation of Risk. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE DAMAGED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
- Customer Indemnity. Customer shall defend, at its own expense, all claims, suits and actions against Ordoro brought by a third party to the extent that such claims, suits or actions arise from (a) Customer Data; (b) Customer’s violation of this Agreement, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) Customer’s use of the Service, except as expressly permitted in this Agreement (each, a “Third Party Claim”). Customer will further indemnify and hold Ordoro harmless from and against liability incurred by Ordoro attributable to a Third Party Claim, including reasonable attorneys’ fees and costs and damages agreed to in a monetary settlement of such Third Party Claim.
- Term. This Agreement will commence on the Effective Date and will continue for an initial term of one (1) month (the “Initial Term”). This Agreement shall thereafter automatically renew for month-to-month periods (each, a “Renewal Term”), unless either party provides ten (10) days prior written notice of non-renewal of the then-current term. The Initial Term and all Renewal Terms shall collectively be referred to as the “Term”. The term of each Order Form, if any, shall be as set forth in the Order Form itself. Any Order Form that expires or terminates after this Agreement expires or terminates shall continue to be subject to and governed by all the terms and conditions of this Agreement.
- 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. In addition to any other remedy in this Agreement, Ordoro may immediately suspend the license provided herein and Customer’s access to the Service (or any part thereof), if Customer engages in activities that are harmful to the Service or Ordoro, its licensors or its users, until Customer remedies such harm.
- Effect of Termination. Upon termination of this Agreement, all rights granted hereunder immediately terminate, Customer and any Authorized Users must immediately stop using the Service, and Customer will 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 use the name, logo, and success stories of Customer on Ordoro’s website, press releases, promotional and sales literature, and advertising materials to generally publicize that is has a relationship with Customer, provided Ordoro does not provide any details of this Agreement or any Order Form to the public and otherwise complies with the confidentiality obligations herein.
- 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 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, provided that the assignee assumes all obligations of the assignor under this Agreement. 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 and provide the non-assigning party the right to immediately terminate this Agreement.
- 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 except for claims for temporary or permanent injunctive relief, any and all disputes, controversies and 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. CUSTOMER AGREES THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, EACH PARTY HEREBY WAIVES ANY RIGHT TO A JURY TRIAL AND AGREES THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. CUSTOMER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
- Notwithstanding anything to the contrary, each party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction (without having to post a bond) to protect its Confidential Information or intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in Section F.6.
- Government Use. This section applies to access to or use of the Service by a branch or agency of the United States Government. The Service includeS “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualified as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this Agreement with respect to the such items, and any access to or use of the Service by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
- 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. For the purposes of this Agreement, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” 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.