If the Customer enters into this Terms of Service on behalf of a company or other legal entity, it represents that it has the authority to bind such entity and all users who access the Orchanger Service through the Customer’s account (“Users”). If the Customer does not have such authority, or if it does not agree with the Terms of Service, it must not accept this Terms of Service and shall not use the Orchanger Service.
– How we maintain and protect your personal information in Orchanger.
-
Description of Service. Orchanger serves as a real-time collaborative workplace environment, including but not limited to, Orchanger website, Orchanger browser extensions, Orchanger desktop clients, Orchanger VSCode extension, Orchanger Hub GitHub app, Orchanger collaborative platform, and any feature or service provided by Orchanger under the free or paid subscriptions or plans (each, a “Service”). You understand and agree that the Service is provided on an AS IS and AS AVAILABLE basis. Orchanger disclaims all responsibility and liability for the availability, timeliness, security or reliability of the Service. Orchanger also reserves the right to modify, suspend or discontinue the Service with or without notice at any time and without any liability to you. Further limitations of liability and responsibility are detailed in Section 10 and 20 of this Terms of Service.
-
Third Party Product or Service. Our Service may integrate with third party applications or software that complement Customer’s use of the Service (each, a “Third Party Product”), including but not limited to, internet browsers, GitHub development platform, payment service providers, data analytic applications, and third-party computing and storage providers. You may refer to Orchanger’s Private Policy for Third Party Product List in detail. THESE ARE NOT OUR SERVICES, SO WE DO NOT WARRANT OR SUPPORT THESE THIRD PARTY PRODUCTS. You acknowledge and agree that Orchanger shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such Third Party Products. We strongly advise you to read the terms and conditions and privacy policies of any Third Party Products that you interact with. If a Third Party Product is integrated for Customer’s use of our Service, please be mindful of certain Customer’s data that will be shared with the third party provider and the purposes for which the provider requires access. You may check our Private Policy for data sharing detail. We will not be responsible for any use, disclosure, modification or deletion of Customer’s data that is transmitted to, or accessed by, a Third Party Product.
-
Use of Service. You must comply with the Terms of Service and ensure that all users under your account comply with the Terms of Service. We may review conduct for compliance purposes, but we have no obligation to do so. We aren’t responsible for the content of any Customer’s data or the way Customer or its account users choose to use the Services to store or process any Customer’s data. The Services are not intended for and should not be used by anyone under the age of 13. You must ensure that all your account users are over 13 years old. Customer is solely responsible for providing high speed internet service for itself to access and use the Services. Customer must provide current, accurate identification, contact, and other information that may be required as part of the registration process and/or continued use of the Service. Customer is responsible for maintaining the confidentiality of Customer’s Service password and account, and is responsible for all activities that occur thereunder.
-
Proper Use. You agree that you are responsible for your own communications and for any consequences thereof. Your use of the Service is subject to your acceptance of and compliance with the agreement, order form (“Order Form”), the Terms of Service, or such other URL or policies as Orchanger may provide from time to time. You agree that you will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence. You shall not, shall not agree to, and shall not authorize or encourage any third party to: (i) use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by Orchanger; (ii) upload, transmit or otherwise distribute content that infringes upon another party’s intellectual property rights or other proprietary, contractual or fiduciary rights or obligations; (iii) prevent others from using the Service; or (iv) use the Service for any fraudulent or inappropriate purpose. Violation of any of the foregoing may result in immediate termination of the use of Service and the Terms of Service, and may subject you to penalties and other legal consequences. Orchanger reserves the right, but shall have no obligation, to investigate your use of the Service in order to determine whether a violation of the Terms of Service has occurred or to comply with any applicable law, regulation, legal process or governmental request. Orchanger reserves the right to refuse service to anyone at any time without notice for any reason.
-
Content of the Service. Any content, including but not limited to any opinions, comments, standpoints, or political views expressed in your account do not represent the views of Orchanger. You alone are responsible for your content. You assume all risks associated with your content, including anyone’s reliance on its quality, accuracy, or reliability, and any risk associated with information you disclose. You represent that you own or have the necessary permissions to use and authorize the use of your content as described herein. You shall not imply that your content is in any way sponsored or endorsed by Orchanger. Orchanger takes no responsibility for your or any third party content (including, without limitation, any viruses or other disabling features), nor does Orchanger have any obligation to monitor such your or third party content. Orchanger reserves the right at all times to remove or refuse to distribute any content on the Service, such as content which violates the Terms of Service. Orchanger also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (e.g. the Digital Millennium Copyright Act or General Data Protection Regulation compliance) (b) enforce this Terms of Service, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of Orchanger, its users and the public. Orchanger will not be responsible or liable for the exercise or non-exercise of its rights under this Terms of Service.
-
Security. The protection of Customer’s data is a top priority for us so we will maintain administrative, physical, and technical safeguards with commercially reasonable effort. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer’s data by our personnel or third party service provider. Before sharing Customer’s data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer data and preventing unauthorized access. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer’s data when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible for what Customer and its account users, third party service provider, or Third Party Products do with Customer’s data. That is your responsibility.
-
Your Intellectual Property Rights. Orchanger does not claim any ownership in any of the content that you create, upload, transmit or store in your Orchanger account. Unless otherwise expressly agreed by both parties in a separate terms and conditions, Customer (for itself and all of its account users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer’s content , and any Third Party Products created by or for Customer, only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; or (c) as required by law or as permitted by any policy published by Orchanger. Customer represents and warrants that it has secured all rights in and to Customer’s data from its Users as may be necessary to grant this license.
-
Copyright. We respect the intellectual property rights of others. It is our policy to respond to any claim that content posted on the Service infringes on the copyright or other intellectual property rights (“Infringement”) of any person or entity. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly Infringe copyrights or intellectual property rights of others. If you are a copyright owner, or authorized on behalf of one, and you believe that any content, materials or works uploaded, downloaded or appearing on the Service have been copied in a way that constitutes copyright infringement, you may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing us with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) identification of the allegedly infringing material on the Service, including URL or other specific location on the Service where the material that you claim is infringing is located; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Such notices of copyright infringement should be sent via email to .
-
Intellectual Property Rights. Orchanger’s Intellectual Property Rights. You acknowledge and agree that Orchanger owns all right, title and interest in and to the Service, including without limitation any and all intellectual property rights (the “Orchanger Rights”), and such Orchanger Rights are protected by international intellectual property laws. Accordingly, you agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. You also agree that you will not use any robot, spider, crawler, other automated device, or manual process to monitor or copy any content from the Service. The Orchanger Rights include rights to (i) the Service developed and provided by Orchanger; and (ii) all software, website, interface, and source codes associated with the Service.
-
Representations and Warranties. You represent and warrant that (a) all of the information provided by you to Orchanger to participate in the Services is correct and current; and (b) you have all necessary right, power and authority to enter into this Terms of Service and to perform the acts required of you hereunder. You further represent and warrant that you are responsible for the conduct of your account users and their compliance with the terms of this Terms of Service and all Policies published by Orchanger from time to time.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION PROVIDED BY Orchanger ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
-
Privacy. As a condition to using the Service, you agree to the terms of the Orchanger Privacy Policy as it may be updated from time to time. Orchanger understands that privacy is important to you. You do, however, agree that Orchanger may monitor, edit or disclose your personal information, if required to do so in order to comply with any valid legal process or governmental request (such as a search warrant, subpoena, statute, or court order), or as otherwise provided in the Terms of Service and the Orchanger Privacy Policy.
-
Service Term. Unless specified at the Service interface “check-out” and in the Order Form(s), a free plan continues until terminated, while a paid subscription has a term that may expire or be terminated. The Service remains effective until all subscriptions ordered under the Service Term have expired or been terminated under the Terms of Service. Termination of the Service will terminate all subscriptions, plans and all Order Forms.
-
Auto-Renewal. Unless specified at the Service interface “check-out” and in the Order Form(s), (a) all paid subscriptions or plans automatically renew (without the need to go through the Services interface “check-out” or execute a renewal Order Form) for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) unless notified by Orchanger at least thirty (30) days before the end of a subscription term, the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term.
-
Account Inactivity. For all free subscriptions or plans, after a period of inactivity, whereby a user fails to login to an account for a period of six months, Orchanger reserves the right to disable or terminate the account and Service. If an account has been deactivated for inactivity, the username and URLs associated with that account may be given to another user without notice to you or such other party.
-
Termination for Cause. We or Customer may terminate the Service on notice to the other party if the other party materially breaches the Terms of Service , Order Forms, or any Policy published by Orchanger (e.g. Customer fails to pay in time). Customer is responsible for its account users, including for any breaches of this Terms of Service caused by its account users. We may terminate the Service immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its account users in violation of applicable law. Upon any termination for cause by Orchanger, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination. Upon any termination for cause by Customer, we will refund Customer any prepaid fees, if any, covering the remainder of the term of all paid subscriptions after the effective date of termination.
-
Termination without Cause (Free Plan). Customer may terminate its free subscriptions or plans by providing notice to Orchanger at without cause; provided, however, that a terminated account may continue to exist for up to 60 business days before such termination takes effect. We may at any time and for any reason terminate Customer’s free plan or subscription, or suspend or terminate Customer’s free account.
-
Termination without Cause (Paid Subscription). Paid Subscription is non-cancelable without cause. During the term of Service set forth in the Order Form(s), Customer may not terminate its paid subscriptions or plans unless otherwise agreed and approved by Orchanger in advance.
-
Payment Obligations. For Customer that purchases our Service under the paid subscription plans, fees are specified at the Service interface “check-out” and in the Order Form(s) — and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated by Orchanger, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term. Please contact Orchanger for more information about payment options. In the event we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse us for such withholding tax.
-
Termination Process. In the event of termination, your account will be disabled and you may not be granted access to your account or any files or other content contained in your account although residual copies of information may remain in our system. Except as set forth above or unless Orchanger has previously canceled or terminated your use of the Services (in which case subsequent notice by Orchanger shall not be required), Orchanger will notify you via email of any such termination or cancellation, which shall be effective immediately upon Orchanger’s delivery of such notice. Sections 2-11, and 18 – 30 of the Terms of Service shall survive expiration or termination.
-
Limitation of Liability. OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER’S OR Orchanger’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICE OR THE TERMS OF SERVICE (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT OBLIGATION” SECTION ABOVE.
IN NO EVENT WILL EITHER CUSTOMER OR ANY MEMBER OF Orchanger HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of its users. Orchanger will not be responsible for any damages, losses or liability to Customer, its account users, or anyone else, if such information is not kept confidential by Customer or its account users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Terms of Service between the parties, and the parties have relied on these limitations in determining whether to enter into the Service and the pricing for the Services.
-
Indemnification. Customer will defend Orchanger and any members of Orchanger (collectively, the “Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its account users’ use of the Service, or Customer’s or any of its account users’ violation of the Terms of Service (a “Claim Against Us”), and will indemnify the Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a Indemnified Party in connection with or as a result of, and for amounts paid by a Indemnified Party under a settlement Customer approves of in connection with, a Claim Against Us. We will provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter.
-
Confidentiality. Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer’s data stored in Orchanger. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; (d) was independently developed by the Receiving Party; or (e) is required by law.
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Terms of Service; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Terms of Service. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Terms of Service.
-
Publicity. Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as may provide to us from time-to-time. We don’t want to list customers who don’t want to be listed, so Customer may send us an email to stating that it does not wish to be used as a reference.
-
Force Majeure. Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
-
No Third Party Beneficiaries. The parties are independent contractors. The Terms of Service does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to the Service and Term of Service.
-
Notice. Except as otherwise set forth herein, all notices under the Terms of Service will be by email, although we may instead choose to provide notice to Customer through the Service platform. Notices will be deemed to have been duly given (a) the day after it is sent to Customer, in the case of notices through email; and (b) the same day, in the case of notices through the Service platform.
-
Waiver. No failure or delay by either party in exercising any right under the Terms of Service will constitute a waiver of that right. No waiver under the Terms of Service will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
-
Severability. The Terms of Service will be enforced to the fullest extent permitted under applicable law. If any provision of the Terms of Service is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Terms of Service will remain in effect.
-
Assignment. Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Terms of Service in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying Orchanger of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Service and this Terms of Service upon written notice to the assigning party. Subject to the foregoing, the Terms of Service will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
-
Choice of Law; Jurisdiction. The Terms of Service are governed by and construed in accordance with the laws of State of Delaware, United States, without regard to choice or conflicts of law principles. The Terms of Service will specifically not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable. The courts located in New Castle, Delaware will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to Service and Terms of Service or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. In any action or proceeding to enforce rights under the Terms of Service, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
-