Orb supports companies that offer products to customers under a usage-based pricing model (each such product, a “Customer Product”). Orb has developed a proprietary software-as-a-service platform that operates as billing infrastructure that measures and charges for usage of Customer Products (the “Orb Platform”). Orb’s customers use the Orb Platform’s application programming interface described in the Documentation (the “Orb API”) to integrate Customer Products with the Orb Platform to monitor usage of such Customer Products and produce the billing metrics needed to support usage-based pricing.
1.1 Orb Platform. During the Term (as defined below), Orb will make available to Customer via the Internet: (i) the Orb Platform; (ii) the Orb API; and (iii) documentation containing instructions for calling the Orb API for purposes of creating an integration between the Orb Platform and the applicable Customer Product(s) under which the Customer Data will be uploaded into the Orb Platform (the “Documentation”). Subject to the terms and conditions of this Agreement, Orb hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right, during the Term, to (i) access and use the Orb Platform, (ii) use the Orb API solely to upload Customer Data into the Orb Platform, in accordance with the Documentation and Orb’s reasonable instructions and (iii) install and use the Documentation, solely for Customer’s internal business purposes. Collectively, the Orb Platform, Orb API and Documentation, and other products and services provided by Orb to Customer under this Agreement are the “Orb Service”. The Orb Service includes any updates that are made generally available by Orb to Customers at no additional charge during the Term (as defined below), but expressly excludes any upgrades or additional services, features or analytics that are made available by Orb for an additional charge. Orb and Customer have entered into the Service Order attached hereto (the “Order”) and, from time to time hereafter, Customer and Orb may enter into additional Service Orders that expressly reference, and are governed by, these Platform Terms and Conditions (“Future Orders”) pursuant to which Customer will purchase rights to access and use certain features of the Orb Service, as detailed in the applicable Order, including in connection with additional Customer Products. These Terms and Conditions are incorporated by reference into the Order to create this Agreement and will be incorporated by reference into each Future Order to create separate future agreements for the rights and services described in the applicable Future Order, in each case to the exclusion of any other terms or conditions that either party seeks to impose or incorporate or that are implied by course of dealing.
1.2 Limitations. Customer will not provide access to the Orb Service to any person who is not an employee or contractor of Customer (“Authorized Users”). Customer will be responsible and liable for all Authorized Users’ compliance with the terms and conditions of this Agreement. Except as expressly permitted hereunder, neither Customer nor any Authorized User will, or will permit or authorize any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Orb Service; (b) modify, translate or create derivative works based on the Orb Service; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Orb Service; (d) use the Orb Service for timesharing or service bureau purposes or otherwise for the benefit of a third party, except as otherwise expressly authorized under this Agreement; (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Orb Service or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (f) remove or obscure any proprietary notices or labels of Orb or its suppliers on the Orb Service. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Orb Service and notify Orb promptly of any such unauthorized access or use, and (ii) use the OrbService only in accordance with the documentation provided by Orb and all applicable laws, rules and regulations.
1.3 Modifications and Updates. Orb reserves the right, at any time and from time to time, to modify or discontinue, temporarily or permanently, the Orb Service (or any part thereof) at any time without prior notice to Customer. Orb will use its very best efforts to notify Customer of any upcoming system maintenance and/or service disruptions.
2.1 Customer Data. Customer or its licensors own the raw data input or uploaded by Customer into the Orb Services, including, without limitation, any such information uploaded by Customer through the Orb API (“Customer Data”). Customer hereby grants Orb the nonexclusive, worldwide, royalty-free, fully paid up, sublicensable, nontransferable (except as set forth in Section 9) right and license to use Customer Data (a) solely to the extent necessary to perform its obligations under this Agreement, and (b) on a deidentified basis to improve its products and services, solely to the extent that the deidentified data does not include information that identifies or would reasonably be expected to identify Customer or any of Customer’s customers. As between the parties, Customer reserves any and all right, title and interest in and to the Customer Data other than the licenses therein expressly granted to Orb under this Agreement.
2.2 Ownership; Reservation of Rights. Customer acknowledges and agrees that, as between the parties, Orb retains all rights, title, and interest in and to the Orb Service, all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. Orb grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Orb Service.
2.3 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Orb with respect to the Orb Service. Orb will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Orb a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
2.4 Customer Responsibilities. Only Customer’s authorized employees who have been assigned a unique login to the Orb Platform will be entitled to access and use the Orb Platform under this Agreement. Customer will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Orb Platform and the Orb API and notify Orb promptly of any such unauthorized access or use, and (b) use the Orb Service only in accordance with the documentation, this Agreement and any applicable laws and regulations. Customer will be solely liable for any uses of accounts linked to Customer’s login credentials.
2.5 Privacy; Data Security. Orb will implement and maintain reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Customer Data that this Agreement does not expressly authorize, including, without limitation, an information security program that meets commercially reasonable industry practice to safeguard Customer Data. Such information security program would include: (i) physical security of all premises in which Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to the employment of, access given to, and education and training of any and all personnel furnished or engaged by Orb to perform any part of the services hereunder.
3.1 Fees; Payment Terms. Customer will pay to Orb the fees set forth in the Order in accordance with the payment terms set forth in the Order. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Orb within ten (10) days from the time such payment is due, Orb may suspend Customer’s access to the Orb Platform until such payment is made. Orb may revise the fees set forth in the Order once per Renewal Term.
3.2 Overages. Within a commercially reasonable period of time following the conclusion of each calendar month occurring during the Term, Orb shall deliver to Customer an invoice that calculates the Overages for the applicable month (such invoice, the “Invoice”). Overages shall be determined by Orb using the calculation indicated on the applicable Order. Orb’s calculation of Overages shall be final. Customer agrees to pay all amounts indicated on each Invoice within thirty (30) days of the date of Invoice.
3.3 Net of Taxes. All amounts payable by Customer to Orb hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and property taxes (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Orb. Customer will not withhold any Taxes from any amounts due to Orb.
4.1 Term. The initial term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order, unless earlier terminated as set forth herein (the “Initial Term”). Thereafter, this Agreement will automatically renew for the renewal term set forth in the Order (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least sixty (60) days’ prior to the end of the then-current term.
4.2 Termination; Effect of Termination. Either party may terminate this Agreement if the other party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days (or ten (10) days in the case of non-payment) of receiving notice thereof. Upon any termination or expiration of this Agreement for any reason, Customer may request an export of the Customer Data in a mutually agreed upon format within thirty (30) days of the effective date of such termination or expiration. Thereafter, Orb may, but is not obligated to, in its sole discretion and without delivery of any notice to Customer, delete any Customer Data stored or otherwise archived on the Orb Platform or on Orb’s network. Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Orb to provide the Orb Platform will immediately terminate and (a) Customer will cease use of the Orb Platform; and (b) each party will return or destroy all copies or other embodiments of the other party’s Confidential Information (subject to Orb’s rights under Section 2.1(b) and (c)).
4.3 Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 2.1(b), 2.1(c), 2.2, 2.3, 3, 4.2, 4.3, 5, 6.4, 7, 8 and 9 will survive.
As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Orb’s Confidential Information includes, without limitation, the Orb Platform and the terms of this Agreement. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
6.1 Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
6.2 Customer Representations and Warranties. Customer represents and warrants that it has the legal authority and all rights necessary to provide the Customer Data to Orb hereunder, and Customer’s provision of the Customer Data to Orb hereunder does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation.
6.3 Uptime. Orb will use reasonable efforts consistent with prevailing industry standards to provide the Orb Service in a manner that minimizes errors and interruptions in accessing and using the Orb Service. The Orb Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Orb or by third-party providers, or because of other causes beyond Orb’s reasonable control, but Orb will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Orb’s control. Orb will provide telephone and e-mail support Monday through Friday, 8 a.m. through 6 p.m. Pacific Time.
6.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE ORB SERVICE IS PROVIDED ON AN “AS-IS” BASIS AND ORB DISCLAIMS ANY AND ALL WARRANTIES. ORB DOES NOT WARRANT THAT THE ORB SERVICE IS ERROR-FREE OR THAT OPERATION OF THE ORB SERVICE WILL BE UNINTERRUPTED. ORB DOES NOT WARRANT THAT THE RESULTS GENERATED BY THE ORB SERVICE ARE ACCURATE OR WILL LEAD TO ANY PARTICULAR OUTCOME, AND ORB EXPRESSLY DISCLAIMS ALL LIABILITY WITH RESPECT TO SUCH RESULTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
7.1 Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1, (B) EITHER PARTY’S BREACH OF SECTION 5 , AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.1 AND 8.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2 General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTIONS 1, AND (B) EITHER PARTY’S BREACH OF ITS USE OR DISCLOSE OF CONFIDENTIAL INFORMATION OBLIGATIONS IN SECTION 5, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO ORB UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
7.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8.1 Indemnification for Infringement. Orb will defend Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the Orb Service infringes any intellectual property right of a third party. Further, Orb will indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Orb’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the Orb Service by any party other than Orb without Orb’s express consent; (b) the combination, operation, or use of the Orb Service with other product(s), data or services where the Orb Service would not by itself be infringing; or (c) unauthorized or improper use of the Orb Service. If the use of the Orb Service by Customer has become, or in Orb’s opinion is likely to become, the subject of any claim of infringement, Orb may at its option and expense (i) procure for Customer the right to continue using the Orb Service as set forth hereunder, (ii) replace or modify the Orb Service to make it non-infringing so long as the Orb Service has at least equivalent functionality, (iii) substitute an equivalent for the Orb Service or (iv) if options (i)-(iv) are not reasonably practicable, terminate this Agreement. This Section 8.1 states Orb’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2 Indemnification by Customer. Customer will defend Orb and the officers, directors, agents, and employees of Orb (“Orb Indemnified Parties”) against any Claims arising from (a) any use or disclosure by Customer of the Orb Service in violation of this Agreement, (b) the Customer Data, (c) the Customer Product and (d) Customer’s violation of applicable law. Further, Customer will indemnify the Orb Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
8.3 Indemnification Procedure. If a Customer Indemnified Party or a Orb Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
Customer agrees that Orb may (a) list and/or identify Customer’s name (including by displaying any Customer trademark) to identify the business relationship between the parties on Orb’s website and in other marketing and advertising collateral and (b) publish a case study with respect to Customer’s use of the Orb Platform. Customer may not remove or export from the United States or allow the export or re-export of the Orb Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the Order and these Platform Terms and Conditions, the terms and conditions set forth in these Platform Terms and Conditions will govern unless expressly stated otherwise in the Order. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and sent to the addresses set forth in the Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the Orb Platform may cause irreparable harm and injury to Orb for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer agrees that Orb may be entitled to injunctive relief in the event Customer uses the Orb in any way not expressly permitted by this Agreement.
These terms were last updated on May 26, 2022.