This Terms of Service Agreement (this “Agreement”) is between Orogamis, LLC (“Company”) and the individual or entity that has executed this Agreement (“Client”). This Agreement sets forth the terms and conditions that govern orders placed by Client for Services under this Agreement.
1.1. “Affiliate” means, with respect to either party, any person, organization or entity controlling or controlled by such party. For purposes of this definition only, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such a person, organization or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization or entity (i) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses directly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
1.2. “Auto Renew” or “Auto Renewal” is the process by which the Term period of the Services under the Order is automatically extended for an additional Services Period unless such Services are otherwise terminated in accordance with the terms of the Order or this Agreement.
1.3. “Confidential Information” means information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement that the Disclosing Party identifies in good faith as confidential or proprietary or, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary, whether written or oral, and shall include but is not limited to, non-public information relating to the Disclosing Party’s: Intellectual Property, its technology, know-how, prototypes, current and future products and services, processes, customers, vendors, contractors, business plans and methods, research and development, promotional and marketing activities, finances, contracts and business arrangements, and other business affairs.
1.4. “Client” refers to the individual or entity that has executed this Agreement.
1.5. “Deliverables” means any work product or other materials created by Company pursuant to any Order, including any items specifically identified as “Deliverables” in any Order.
1.6. “Disclosing Party” means the party disclosing Confidential Information to the other party.
1.7. “Intellectual Property” shall mean, on a worldwide basis, any and all present and future:
(a) rights associated with works of authorship and literary property, including copyrights, moral rights of an author of a copyrightable work (including any right to be identified as the author of the work or to object to derogatory treatment of the work), and mask-work rights;
(b) trademarks, service marks, logos, trade dress, trade names, whether or not registered, and the goodwill associated therewith;
(c) rights relating to know-how or trade secrets, including ideas, concepts, methods, techniques, inventions (whether or not developed or reduced to practice), utility models;
(d) patents, designs, design rights, registered designs, unregistered designs, algorithms, copyright, database rights, moral rights, service marks and other industrial property rights;
(e) rights in domain names, universal resource locator addresses, telephone numbers (including toll free numbers), metatags and similar identifiers;
(f) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and
(g) registrations, initial applications (including intent to use applications), renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
1.8. “Losses” shall mean any monetary loss, damage, cost, liability, or expense (including reasonable attorneys’ fees).
1.9. “Order” means the corresponding Order Form that sets forth the Services.
1.10. “Receiving Party” means the party in receipt of Confidential Information from the other party.
1.11. “Services” means, collectively, the consulting and other professional Services which Client has ordered; professional Services include any deliverables described in Client’s order and delivered by Company to Client under such Order.
1.12. “Service Period” means the period in which Company will provide Services to Client pursuant to the terms of the Order.
1.13. “Third Party” is any entity or person that is not a party to this Agreement and is not an Affiliate of such party.
1.14. “Users” means those employees, contractors, and end users, as applicable, authorized by Client or on Client’s behalf to use the Services in accordance with this Agreement and Client’s order.
This Agreement is valid for the Order which this Agreement accompanies. This Agreement may also be referenced for any purchase that increases the quantity of the original Services ordered (e.g., additional Users), for any Services options offered by Company for the original Services ordered, and for any renewal or Auto Renewal of the Services Period of the original order.
2.1. Costs And Expenses. Client acknowledges that a fee in the amount invoiced pursuant to an Order is reasonable for the Services that Client has engaged Company to perform. Client agrees to reimburse Company for the costs and expenses that Company incurs or pays on Client’s behalf and charges to its account, including costs for collection of any charges. Further, Company’s invoices may include charges for items and services that are non-overhead expenses incurred for Client’s benefit. For any substantial expenses, Client agrees that it will pay the fees and expenses directly, and authorizes Company to make arrangements to have such third parties bill Client directly. Company will only advance minor expenses and bill Client for those out-of-pocket expenditures made on its behalf.
2.2. Services Outside Scope Of Work. Client agrees that once it has approved the scope of work as defined by the Order, that it defines the full and definite scope of Services covered by the Terms, and that no work outside this scope shall be considered as included or au gratis.
2.3. Late Invoices And Incomplete Payments. Each invoice shall be paid by Client in accordance with the Terms agreed upon by both Parties by the due date of such invoice. Any late invoicing by Company shall not affect the obligation of Client to pay for the Services covered by that invoice. Any amount paid less than that stated on an invoice shall not constitute payment in full, or an “accord and satisfaction” of such debt, unless agreed to in a writing signed by both Parties.
2.4. Advances. Client agrees that Company will have the right to request advances from time to time based on Company’s estimates of future work that will be required. If Client fails to pay any advance requested within ten (10) business days, Company will have the right to cease performing further work and immediately terminate the Order.
2.5. Late Payments. Client agrees to complete payments by the due date listed on the invoice (“Due Date”). If Client fails to complete payments by the Due Date, Company may, in its sole discretion:
3.1. Mutual Representations By The Parties. Each party represents and warrants to the other that (i) their organization is duly incorporated or organized, validly existing and in good standing, (ii) they have all requisite corporate power and authority to execute, deliver, and perform their obligations under this Agreement, and (iii) the execution, delivery, and performance of this Agreement have been duly authorized by all requisite corporate action on their behalf.
3.2. Use Of Deliverables. Client represents and warrants that to the best of their knowledge, Company’s use of Deliverables as permitted under this Agreement will not violate or infringe any Intellectual Property Rights of any third party.
3.3. Warranty Disclaimer. EXCEPT AS EXPLICITLY WARRANTED IN A SERVICE ORDER, COMPANY SERVICES AND WORK PRODUCT PRODUCED THEREFROM ARE PROVIDED “AS IS”, “AS-AVAILABLE”, AND WITH ALL FAULTS; COMPANY DOES NOT ISSUE RETURNS NOR REFUNDS AS ALL SALES ARE FINAL. COMPANY FURTHER MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO COMPANY SERVICES AND WORK PRODUCT PRODUCED THEREFROM, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF QUALITY, OR WARRANTIES AGAINST INFRINGEMENT OF PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS OF OTHERS. COMPANY CANNOT BE RESPONSIBLE FOR THE EFFICACY OF THIRD PARTY SYSTEMS, AND CONSEQUENTLY, MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND WITH RESPECT TO THOSE SYSTEMS.
4.1. Confidentiality Between The Parties. Each of the parties undertake to each other to keep confidential all Confidential Information, except any:
Each of the parties undertakes to the other that it shall from time to time take necessary steps to ensure compliance with the provisions of the above clause by its employees, agents, contractors. For more sensitive information, the parties may separately execute a non-disclosure agreement to emphasize the importance of confidentiality and protection from disclosure of such information. Failure to mark any of the information as “confidential,” “trade secret,” or any other designation shall not affect its status under the terms of this Agreement. The terms set forth in this Section relating to the protection of Confidential Information comprising trade secrets are perpetual and are not limited in duration. The terms set forth in this Section relating to the protection of Confidential Information that do not constitute trade secrets under the governing law survive termination of this Agreement by three (3) years. Client covenants and agrees that all right, title and interest in and to any Company Confidential Information shall be and shall remain the exclusive property of Company.
4.2. Confidentiality With Other Clients. Because of Company’s agreements with each of its Clients, Company is ordinarily prohibited from sharing with Client any confidential information that Company obtains in the course of performing Services for another Client. Accordingly, Client acknowledges and agrees that Company will have no obligation to share with Client any confidential information obtained from any of Company’s other Clients, even if such information is material to Client and Client’s interests. Likewise, Company is not permitted to share Client’s confidential information with any other Client or third party without Client’s consent.
4.3 Irreparable Harm. Each party acknowledges that breach of Section 4 (Confidentiality) may cause Disclosing Party immediate, irreparable harm that cannot be adequately compensated by money. Disclosing Party may be entitled, in addition to other remedies available, to injunctive relief for any such breach without proof of actual damages or the posting of bond or other security, in addition to its other rights or remedies that may be available at law or in equity.
5.1. Pre-Existing Materials. All Intellectual Property of each party developed before the Effective Date will remain the exclusive property of that party. If, in the course of Company performing Services for Client, Client incorporates into any Intellectual Property developed under this Agreement any pre-existing Intellectual Property owned by Client (“Pre-Existing Materials”) or in which Client has an interest, Client hereby grants Company and any Company Affiliates involved in performing the Services a limited, non-exclusive, non-transferable (except as provided under Section 11.4), fully-paid, royalty-free license during the Service Period to use the Pre-Existing Materials in accordance with this Agreement for the purpose of providing the Services under the applicable Order.
5.2. License For Performance Of Services. Subject to any limitations or restrictions set forth in agreements between Client and third-party licensors of Client’s Intellectual Property (which limitations or restrictions shall be disclosed to Company and any Affiliates involved in performing Services at the time such Client Intellectual Property is made available), Client hereby grants Company and any Company Affiliates involved in performing the Services a limited, non-exclusive, non-transferable (except as provided under Section 11.4), fully-paid, royalty-free license during the Service Period to use the Client Material in accordance with this Agreement for the sole purpose of providing the Services under the applicable Order.
5.3. License To Client. Client is granted a limited revocable, non-sublicensable license to Company Intellectual Property. Client agrees to comply with any additional restrictions provided in the applicable Order with respect to the use of any software provided by Company or a Company Affiliate (“Company Software”). Client acknowledges that Company Software, including the structure, organization, and source code of Company Software, contains valuable trade secrets of Company or a Company Affiliate. Accordingly, Client agrees not to: (a) sublicense, rent, lease, or otherwise transfer the Company Software to any third party, and except to the extent permitted by law, not to: (b) modify, alter, translate, or create derivative works of the Company Software, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Company Software, or (d) use or copy the Company Software for any purpose except as permitted under this Agreement.
5.4. Warranty. Client warrants that all elements of text, graphics, photos, designs, or any other materials provided to Company for inclusion in Services, are owned by Client, or that Client has received permission from a rightful owner, licensee, sublicensee or other vested with the ability to grant permission to others, to bestow upon Company the right to make, use, distribute, copy, publicly display, modify, destroy, perform, prepare derivative works, sell, or license all such materials.
The parties each undertake to the other to observe and comply with the provisions of the data protection laws in the performance of this Agreement. Client warrants and undertake to the Company to have appropriate technical and organizational measures in place to protect any personal data provided by the Company against unauthorized or unlawful processing and against accidental loss or destruction and that it has taken all reasonable steps to ensure the reliability of any staff who will have access to personal data supplied by the Company hereunder.
7.1. No Partnership Or Joint Venture. It is not the purpose or intention of this Agreement to create, and this Agreement shall not be considered as creating, a joint venture, partnership, or other relationship whereby any party shall be held liable for the omissions or commissions of any other party. No partnership, legal person, association, or legal entities are intended or hereby created by the Parties.
7.2. Conflict. Client understands and agrees that this is not an exclusive agreement, and that Client is free to retain any other Company of its choosing. If Company discovers during the process of performing the Services that another Client’s interests are materially and directly adverse to Client, Company may, upon notice to Client, immediately terminate the Agreement with Client if the conflict (i) is substantially related to the Company’s representation of Client or (ii) concerns any matter where there is a reasonable probability that confidential information Client furnished to Company could be used to Client’s disadvantage. Client understands and agrees that Company is free to represent other Clients, including Clients whose interests may conflict with Client in litigation, business transactions, or other matters. Client also agrees that Company’s relationship with Client will not prevent the Company from representing Clients adverse to Client and that Client consents in advance to the Company undertaking such adverse representations on behalf of other Clients.
This agreement may be modified, amended, or supplemented upon mutual consent of both parties in a writing signed by both parties, and may not be modified by oral agreement. Client may request modification of this Agreement in a writing sent to Company stating the reasons therefore, but Company is not required to accept requested modifications nor respond to such modifications.
9.1 Company Indemnification. Company shall indemnify, defend and hold Client and its Affiliates, and each of their directors, officers, employees and agents, harmless from and against any Losses arising from grossly negligent or willful misconduct of Company or its Affiliates in performing Services hereunder.
9.2 Client Indemnification. Client agrees to defend, indemnify, and hold harmless Company and its directors, officers, officials, partners, agents, servants, volunteers and employees from and against any and all liability, claims, damages, costs, expenses, awards, fines, judgements, taxes, losses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (i) any negligent, reckless or intentionally wrongful act of Client or Client’s assistants, employees, or agents, (ii) any breach by Client or Client’s assistants, employees or agents of any of the covenants contained in this Agreement, (iii) any failure by Client to perform in accordance with all applicable laws, rules, and regulations, (iv) any violation or claimed violation of a third party’s rights resulting in whole or in part from performance of Services undergone pursuant this agreement by Company, including, but not limited to, Company’s use of Client’s work product or related materials under this Agreement, for lawsuits, including, but not limited to, infringement of intellectual property rights. Notwithstanding the foregoing, Client is not responsible for indemnification of any loss or damage caused by the sole negligence or willful misconduct of Company.
9.3 Indemnity Procedure. The indemnified party will (a) give the indemnifying party written notice of any claim, action, suit, and proceeding for which the indemnified parties are seeking indemnity; (b) grant control of the defense and settlement to the indemnifying party; and (c) provide, at the indemnifying party’s expense, reasonable assistance in the defense or settlement thereof. In any event, the indemnified party shall have the right to participate, at their own expense, in the defense or settlement of any claim, action, suit or proceeding that is the subject of an indemnification obligation. The indemnifying party will not settle any claim that creates any ongoing liability to the indemnified party or an admission of liability with respect to any claim without the indemnified party’s written consent.
9.4 Limitation Of Liability. EXCEPT IN THE CASE OF FRAUD OR WILLFUL OR INTENTIONAL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO SUCH ACTION OR OMISSION, INCLUDING WITHOUT LIMITATION ACTIONS FOR GROSS NEGLIGENCE OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1. Arbitration. All controversies, claims or disputes between the parties and their Affiliates arising out of or relating to this Agreement, including those concerning the interpretation, breach, or enforcement of this Agreement, shall be subject to binding arbitration. THE PARTIES AGREE TO ARBITRATE, AND THEREBY AGREES TO WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO, ALL DISPUTES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY STATUTORY CLAIMS UNDER STATE OR FEDERAL LAW. The arbitration shall be conducted according to the laws of and in the State of California.
10.2. Procedure. Client agrees that any arbitration will be administered by the American Arbitration Association (“AAA”), and that a neutral arbitrator will be selected in a manner consistent with its Commercial Arbitration Rules and Mediation Procedures. Client agrees that the arbitrator will have the power to decide on any motions brought by any party to the arbitration, including discovery motions, motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. Client agrees that the arbitrator will issue a written decision on the merits. Client also agrees that the arbitrator will have the power to award any remedies, including attorneys’ fees and costs, available under applicable law.
10.3. Sole Remedy. Except as provided under California law, arbitration will be the sole, exclusive and final remedy for any dispute between Company and Client. Accordingly, except as provided under California law, neither of the parties will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the arbitrator will not have the authority to disregard or refuse to enforce any lawful Company policy, and the arbitrator shall not order or require Company to adopt a policy not otherwise required by law which Company has not adopted.
10.4. Availability Of Injunctive Relief. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without abridgment of the powers of the arbitrator. Further, Client agrees that any party may petition the court for injunctive relief where either party alleges or claims a violation of this Agreement or any other agreement regarding trade secrets, confidential information, or non-solicitation. In the event either Company or Client seek injunctive relief, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.
10.5. Attorneys’ Fees. In the event that there is any controversy, claim or dispute arising out of or relating to this Agreement, including, without limitation, to the interpretation, breach or enforcement of this Agreement, the prevailing party shall be entitled to a reasonable attorney’s fees, costs, and expenses.
10.6. Voluntary Nature of Agreement To Arbitrate. Client acknowledges and agrees that its agreement to arbitration under this Section is made voluntarily and without any duress or undue influence by Company or anyone else. Client further acknowledges and agrees that Client has carefully read this Agreement and have asked any questions needed to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that Client is waiving Client’s right to a jury trial. Finally, Client agrees that Client has been provided an opportunity to, and has been advised to seek the advice of an attorney of its choice before signing this Agreement.
11.1. Severability And Headings. In the event one (1) or more of the provisions of this Agreement or the application thereof to any circumstance are found to be invalid or unenforceable to any extent by a court with jurisdiction, the remaining provisions or subprovisions shall continue in full force and effect. If any provision of this Agreement is found to be so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable. Section headings are used in this Agreement for reference purposes only and shall not affect the interpretation or meaning of this Agreement.
11.2. Notices. All notices required or permitted hereunder shall be in writing and in the English language and shall be sent by internationally recognized courier to the address of each party detailed in the Order, or to such other address as such other party shall have communicated to the other party in writing. Notice shall be deemed to have been served when received.
11.3. Entire Agreement. Client agrees that this Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with the applicable Order, is the complete agreement for the Services ordered by Client and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. No obligation or undertaking that is not set forth expressly in this Agreement or the Order shall be implied on the part of either the Company or Client. In the event that Company is engaged to perform additional matters for Client, the terms and conditions set forth in the Agreement and Order shall also apply, unless modified in writing by mutual agreement, to such additional or subsequent engagements that Company may agree to undertake for Client. In the event of any inconsistencies between the terms of the Order and the Agreement, the Order shall take precedence.
11.4. Assignment. This Agreement and the rights, interests, and obligations hereunder shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. However, neither party may assign, delegate, or otherwise transfer its rights, interests or obligations under this Agreement without the other party's prior written consent (not to be withheld or delayed unreasonably), and any such assignment, delegation, or transfer without the other party’s prior written consent is void, except in connection with the sale, transfer, or other disposition of all or any portion of its business or assets in a transaction in which the transferee or successor to such business or assets assumes the transferring party's corresponding obligations under this Agreement.
11.5. Publicity. Except as otherwise required by applicable law, neither party shall refer to the other party in advertising, promotional activities, or other public disclosures or announcements without such other party’s prior written consent. The parties agree that if one party seeks written consent from the other party, the other party must agree to negotiate providing written consent in good faith.
11.6. No Waiver. No failure by Company to insist upon the strict performance of any obligation of Client under this Agreement or to exercise any right, power, or remedy consequent upon a breach thereof, no acceptance of full or partial payment during the continuance of any such breach by Client, or partial payment by Client of an invoice, shall constitute a waiver of any such term, provision, or condition, or as a waiver of any other term, provision, or condition of this Agreement. No waiver of any provision of this Agreement will be binding unless in writing and signed by a duly authorized representative of each of the parties, including, but not limited to, Company failing to: strictly adhere to accepting payment for an invoice after thirty (30) days, to charge interest, to require immediate payment in full, to transfer debt to a collection agency, or to exercise any other right, power, or remedy of Company provided by this Agreement.
11.7. Force Majeure. If performance of this Agreement or any obligation thereof is prevented, restricted, or interfered with by causes beyond either party’s reasonable control, and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary due to such event. The term Force Majeure shall include, but is not limited to, labor disputes, acts of God, work stoppages, labor disturbances, pandemics, inclement weather, fire, explosions, acts of military or civil authority, governmental restrictions, enemy or hostile governmental action, national emergency, insurrection, riot, war, strikes, lock-outs, server crashes or other third party technical failures, power outages, involuntary quarantines, epidemics, computer viruses, and other causes beyond Company’s reasonable control. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or Affiliates.
11.8. Governing Law And Venue. The parties agree that the substantive laws of California, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the Parties arising from or relating in any way to the subject matter of this Agreement. The parties consent to the exclusive personal jurisdiction of and venue in a court located in Sacramento, CA for any suits or causes of action connected in any way, directly or indirectly, to the subject matter of this agreement.
Upon such termination, all rights and duties of Company and Client toward each other shall cease except:
13.1. Termination. This Agreement shall be terminable: upon thirty (30) days written notice (the “Notice Period”) by either party for any reason; or immediately by either party for cause. For the purposes of this section, “for cause” is defined as:
13.2. Rights And Duties During Notice Period. During the Notice Period, the parties’ rights, payments, duties, and responsibilities shall continue. The Notice Period shall commence on the day of mailing or electronic mailing of the written notice.