Terms of Service

1. YOUR RIGHTS

2. YOUR RESPONSIBILITIES

3. SERVICE(S)

4. INTELLECTUAL PROPERTY RIGHTS

5. THIRD PARTY SERVICES

6. CHARGES AND PAYMENT

7. TERM, TERMINATION AND SUSPENSION

7.1. The Subscription Term shall be set forth on the Website or in a relevant Order Form.

7.2. Termination by You: You may terminate your Account and subscription to the Services at any time, by providing us a prior written notice of thirty (30) days, however You will remain liable for all Subscription Charges for the Subscription Term.

7.3. Suspension and Termination by Us: In addition to suspension for late payment or non-payment of Subscription Charges, We may suspend Your access to and use of Your Account or the Service(s) if You are in violation of these Terms. We will notify You if your activities violate these Terms and, at Our sole discretion, provide You with a period of fifteen (15) days ("Cure Period") to cure or cease such activities. If You fail to cure or cease such activities within said Cure Period or if We believe that such breaches cannot be cured, Your Account shall be terminated. We may also terminate a Trial Period in accordance with clause 3.1. Further, We also reserve the right to terminate Your Account at any time by written notice due to business reasons which shall include discontinuation of the Services.

7.4. Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate these Terms with notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies which are dismissed within sixty (60) days), or has a receiver or trustee appointed for substantially all of its property.

7.5. Effect of Terminating Your Account: Following the termination of Your Account either by Yourself or by Us, Your access and use of the Services shall cease. We retain all Customer Data in our possession for fifteen (15) days from the date of effective termination ("Data Retention Period"). Beyond the Data Retention Period, We reserve the right to delete all the Customer Data in our possession.

8. CONFIDENTIALITY; DATA PRIVACY AND SECURITY

8.1. If You choose, or are provided with, a user identification code, login, password or any other piece of information as part of Our security procedures, You must treat such information as confidential. You must not disclose it to any third party. We shall have the right to disable any user identification code or password, whether chosen by You or allocated by Us, at any time, if in Our reasonable opinion, You have failed to comply with any of the provisions of these Terms. We will not be responsible for any activities, including any attempted or actual access or loss of data occurring in Your Account as a result of your non-compliance of obligations under this clause.

8.2. Each of the Parties will protect the other's Confidential Information from unauthorized use, access or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of the Parties may use the other's Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this clause shall supersede any non-disclosure agreement by and between the Parties entered prior to these Terms that would purport to address the confidentiality of Customer Data and such agreement shall have no further force or effect with respect to Customer Data.

8.3. We shall use appropriate technical and organizational measures to protect the Customer Data. The measures used are designed to provide a level of security appropriate to the risk of Processing the Customer Data. We shall, without undue delay, notify You of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Customer Data processed by Us.

8.4. You acknowledge that We shall Process Customer Data only to provide, maintain and improve the Services, or prevent or address any technical problems, or at Your request in connection with support requests and in accordance with these Terms and Our Privacy Policy. We shall not Process Customer Data for any purposes other than what is mentioned in these Terms and Our Privacy Policy.

8.5. You understand and acknowledge that, in connection with the use of the Service by Yourself, Your Users and/or End Users, We Process any Personal Data only on Your behalf and as a data processor.

8.6. You agree and acknowledge that We may collect and use query logs, and any data relating to the operation, support, and/or about Your use of Service(s) ("Usage Data") to develop, improve, support and operate Service(s).

8.7. You understand and acknowledge that, in connection with the use of Service(s) by You, Your Users and/or End-User, We shall Process any Personal Data forming part of Customer Data only on Your behalf and as a data processor. Where We Process Personal Data forming part of Customer Data that originates in the European Economic Area (EEA), the UK or Switzerland, Our Data Processing Agreement available by emailing support@userorbit.com shall apply to such

8.8. You warrant that

• You have established notices or policies for and ensure compliance with all applicable data protection laws relating to the collection and transmission of Personal Data forming part of Customer Data; and
• You have obtained and maintain necessary authorizations, approvals, and permissions for Us to Process such Personal data for the purpose of providing Service(s). You are responsible for the loss, damage, destruction, and unlawful transmission of Personal Data in violation of this Clause and You acknowledge and agree that We shall have no liability for claims arising from Your failure to comply with this Clause.

8.9. You acknowledge and agree that We may access or disclose information about You, Your Account, Users, including Customer Data in order to

• comply with the law or respond to lawful requests or legal process; or
• prevent any infringement of group companies or Our customer's proprietary rights. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.

8.10. We shall reasonably assist You, at Your expense, in meeting Your obligations under applicable data protection laws.

9. DISCLAIMER OF WARRANTIES

9.1. THE SERVICE(S), INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.

9.2. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ACCESS TO THE SERVICE(S), WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.

10. LIMITATION OF LIABILITY

10.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY,NEGLIGENCE OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL BE LIMITED TO AN AMOUNT EQUAL TO TWELVE MONTHS OF THE SUBSCRIPTION CHARGES PAID BY YOU FOR THE SERVICE(S) PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.

10.2. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, WE DISCLAIM ALL LIABILITIES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES OFFERED DURING THE TRIAL PERIOD.

11. INDEMNIFICATION

11.1. Indemnification by You: You will indemnify and hold Us harmless against any claim brought by a third party against Us, Our respective employees, officers, directors and agents arising from Your acts or omissions in connection with clause 2 of these Terms provided that

• We promptly notify You of the threat or notice of such a claim,
• You will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim;
• We shall fully cooperate with You in connection therewith.

12. MISCELLANEOUS

12.1. Assignment: These Terms and any rights or obligations hereunder may not be assigned by You without Our prior written consent, whereas We can assign any of our rights and obligations hereunder without Your prior written consent.

12.2. Amendment: We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any amendments to these Terms and Your continued use of the Service(s) following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment.

12.3. Severability; No Waiver: If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Our non-exercise of any right under or provision of these Terms does not constitute a waiver of that right or provision of These Terms.

12.4. Relationship of the Parties: The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.

12.5. Survival: All clauses which, by their nature are intended to survive, including without limitation Clauses 4 (Intellectual Property Rights), 6 (Charges and Payment), 7 (Term, Suspension and Termination), 8 (Confidentiality, Data Privacy and Security), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Indemnification), 12 (Miscellaneous) and 13 (Definitions) shall survive any termination of Our agreement with Yourself regarding the use of the Service(s). Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of These Terms.

12.6. Notices and Consent to Electronic Communications: All notices from Us under these Terms may be delivered in writing

• by nationally recognized overnight delivery service (“Courier”) or to the contact mailing address provided by You while subscribing to the Service(s); or
• electronic mail to the e-mail address provided to Your Account. Our address for a notice is: Userorbit Inc at 2093, Philadelphia Pike #8778, Claymont, Delaware 19703 with a CC to support@userorbit.com by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.

12.7. Publicity Rights: You hereby grant Us a royalty-free, worldwide, transferable license to use Your trademark or logo to identify You as Our customer on Our websites and/or marketing collateral and to include Your use of the Services in case studies.

12.8. Governing Law and Dispute Resolution: These Terms shall be governed by the laws of the State of Delaware, USA without regard to any conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts at Claymont, Delaware. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules (“AAA Rules”), and judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The language of the arbitration shall be English. The dispute shall be resolved by a sole arbitrator who shall be appointed in accordance with the AAA Rules. The decision of the sole arbitrator shall be final and binding on the Parties.

12.9. Entire Agreement: These Terms, together with any Order Forms, constitute the entire agreement, and supersede any and all prior agreements between Us and Yourself with regard to the subject matter hereof. In the event of a conflict between the terms of any Order Form and these Terms, the Terms shall prevail. In case of a conflict between two Order Forms, the Order Form later in date shall prevail.

12.10. Force Majeure: Notwithstanding anything to the contrary contained elsewhere, We shall not be liable for unavailability of the Service(s) caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the internet, unauthorized loss, distribution or dissemination of Customer Data), or acts undertaken by third parties, including without limitation, distributed denial of Service attacks.

13. DEFINITIONS