Orum - Software License and Services Terms

Software License and Services Terms

Last updated May 3, 2023

This Web-Based Software License and Services Terms (the “Terms”), any Order Form, and any and all Exhibits and attachments attached thereto (the “Agreement”) shall be effective when executed in conjunction with one or more Order Forms or via an online clickthrough. The Agreement applies between Orum Inc. (“Provider”) and the person, company, or other entity entering into an Order Form or similar agreement hereunder (the “Licensee”). Capitalized terms not defined here have the meanings given to them in the Order Form or similar agreement. Any and all capitalized terms used, but not defined in this Order Form or similar agreement, will have the meaning given to them in the Terms.

Definitions. For the purposes of these Terms, the following terms shall have the following definitions:
- “Documentation” means any user manuals, reference guides, specifications, documentation, instruction materials and similar recorded data and information, whether in electronic or physical output form, that Provider makes available to, provides access to or provides to Licensee or that Provider makes publicly available, which may describe how the Software is to be operated by users.
- “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the Laws of any state, country, territory or other jurisdiction.
- “Laws” means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction.
- “Licensed Materials” means, collectively, the Documentation and the Software.
- “Licensee Inputs” means text, images, profile information, data, video, audiovisual content, works of authorship or other types of materials, information or communications, or hyperlinks to any of the foregoing, Licensee provides, imports, posts, uploads, publishes, transmits or distributes on or through the Licensed Materials.
- “Services” means the Support Services and any other services provided to Licensee by Provider.
- “Software” means the hosted software platform and services described on the Order Form.
- “User” means any individual accessing and/or using the Licensed Materials through the Licensee’s Account.
Provision of the Licensed Materials.
1. License Grant. Subject to the terms and conditions of this Agreement (including, but not limited to, any license measurements set forth in the Order Form), Provider hereby grants to Licensee during the Subscription Term a worldwide, nonsublicensable, nonexclusive, non-transferrable/assignable (except as set forth in Section 11.2) right and license to access and use the Licensed Materials solely as permitted by the features of the Licensed Materials. Licensee will use the Software in accordance with the Documentation governing the access and use of the Software and this Agreement.
2. Restrictions. Licensee will not: (i) use the Licensed Materials in excess of any license restrictions or measurements set forth in the Order Form, (ii) reverse engineer, attempt to discover any source code or underlying ideas or algorithms of any Licensed Materials (except to the extent that applicable Law prohibits reverse engineering restrictions), (iii) copy, distribute, or disclose any part of the Licensed Materials in any medium, including without limitation by any automated or non-automated “scraping”, (iv) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use, in each case, for the direct benefit of any third party (other than its affiliates), any of the Licensed Materials (except as authorized by Provider), (v) access or use the Licensed Materials in violation of any applicable Laws, (vi) transmit spam, chain letters, or other unsolicited email, text, SMS, MMS or other electronic message, advertising or marketing materials, or otherwise engage in any activities through or using the Licensed Materials that violate applicable Laws, (vii) interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Licensed Materials, (viii) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access or use the Licensed Materials in a manner that sends more request messages to Provider’s servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser, (ix) take any action that imposes, or may impose at Provider’s sole discretion, an unreasonable or disproportionately large load on Provider’s infrastructure, upload invalid data, viruses, worms, or other software agents through the Licensed Materials, (x) collect or harvest any personally identifiable information, including without limitation, account names, from the Licensed Materials, (xi) impersonate another person or otherwise misrepresent Licensee’s affiliation of identity, (xii) interfere with the proper working of the Licensed Materials, (xiii) access any content on the Licensed Materials through any technology or means other than those provided or authorized by the Licensed Materials, (xiv) bypass the measures Provider may use to prevent or restrict access to the Licensed Materials, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Licensed Materials or the content therein, (xv) erase, deface or obscure any copyright or other proprietary other notices that appear on the Licensed Materials or any copies thereof, (xvi) access or use the Licensed Materials for any fraudulent or illegal purposes, including, but not limited to, any violation of the Copyright Act (U.S.), the Copyright Act (Canada) (R.S.C., 1985, c. C-42) or other applicable Laws, (xvii) use the Licensed Materials to communicate any message or material that is deemed harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful, or (xviii) attempt, or assist a third party to attempt or engage in, any of the foregoing.
3. Licensee Responsibilities. Licensee: (a) is responsible for protecting all authentication keys and access tokens; (b) shall not disclose the authentication key or access tokens to any third party except Licensee’s employees or other authorized personnel; (c) shall not use the authentication keys or access tokens for any purpose other than as necessary to exercise its rights granted under this Agreement; and (d) is responsible and liable to Provider for all activity that occurs with the authentication keys or access tokens or otherwise through or in connection with Licensee’s or its authorized users’ accounts on the Licensed Materials, including, without limitation, any unauthorized use or access of the Licensed Materials through Licensee’s or its authorized users’ accounts by Licensee and/or any third parties.
Ownership and Data Rights.
1. Ownership. As between Provider and Licensee: (a) Licensee own all right, title and interest in and to (i) the Licensee Inputs, and (ii) any and all Intellectual Property Rights in and to the Licensee Inputs; and (b) Provider owns all right, title and interest in and to (i) the Licensed Materials, and (ii) any and all Intellectual Property Rights in and to the Licensed Materials.
2. License to Licensee Inputs. Licensee hereby grants to Provider during the Subscription Term a fully paid-up, royalty-free, worldwide, nonexclusive right and license, with the right to sublicense, to use the Licensee Inputs solely as necessary to perform its obligations under this Agreement and for such other purposes identified in Provider’s privacy policy, at https://orum.com/privacy, as it may be updated by Provider from time to time in accordance with the terms and conditions set forth therein. Licensee acknowledges and agrees that Provider takes no responsibility and assumes no liability for Licensee Inputs. Provider shall provide a comparable level of protection as would be required under the Personal Information Protection and Electronic Documents Act (Canada) to protect any personally identifiable information contained in the Licensee Inputs from unauthorized uses and disclosures.
3. Other Licensee Data. In the course of providing the Services under the Agreement, the Provider may process Licensee Inputs and other data on behalf of the Licensee (“Licensee Data”). Where this is the case, the Provider will Process such Licensee Data in accordance with the terms and conditions of the Data Processing Addendum (“DPA”), available at https://orum.com/data_processing_addendum, or otherwise agreed to in writing between the parties, which is supplemental to and subject to the terms of the Agreement entered into between the parties.
4. Responsibilities for Licensee Inputs. Without limiting any of its other representations and warranties in this Agreement, in connection with Licensee Inputs, Licensee represents and warrants that: (a) Licensee has obtained the Licensee Inputs lawfully and that Licensee’s provision and use of, and Provider’s use of, the Licensee Inputs as contemplated by the terms and conditions of this Agreement do not and will not violate any applicable Laws or any person’s or entity’s proprietary rights, including without limitation any privacy or Intellectual Property Rights; (b) all Licensee Inputs have been collected in accordance with a privacy policy which provides all necessary consents and disclosures required under applicable Law to permit Licensee’s provision and use of, and Provider’s use of, the Licensee Inputs as contemplated by the terms and conditions of this Agreement; and (c) Licensee is solely responsible for ensuring compliance with all privacy Laws in all jurisdictions that may apply to the Licensee Inputs provided hereunder
5. Aggregate and Anonymized Data. Notwithstanding Section 3.2, Licensee agrees that Provider may collect during the Subscription Term, and analyze, use and/or disclose during or after the Subscription Term, the Licensee Inputs and data derived from the Licensee Inputs solely in a (i) de-identified, (ii) anonymized and/or (iii) anonymized and aggregated form, for Provider’s own business purposes, including without limitation, to operate, provide, analyze, improve, market and promote the Licensed Materials and Provider’s other related products and services.
6. Right to Deletion. Provider reserves the right to delete any and all Licensee Inputs after the termination or expiration of the Subscription Term. Provider reserves the right to delete any Licensee Inputs which contain Personal Data during the Subscription Term if it considers that those Licensee Inputs are no longer required to perform its obligations. For purposes of this Agreement, “Personal Data” shall have the same meaning as set forth in the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council.
7. Third Party Software. The Licensed Materials may contain features designed to interoperate with a web-based or offline software application that is provided by Licensee or a third party and interoperates with the Licensed Materials (collectively referred to herein as the “Third Party Software”). To use such features, Licensee may be required to obtain access to Third Party Software from their providers, and may be required to grant Provider access to its account(s) on the Third Party Software. If Licensee installs or enables any Third Party Software for use with the Licensed Materials, Licensee grants Provider permission to allow the provider of that Third Party Software to access Licensee data as required for the interoperation of that Third Party Software with the Licensed Materials. Any acquisition by Licensee of such Third Party Software, and any exchange of data between Licensee and any provider of the Third Party Software, is solely between Licensee and the applicable Third Party Software provider. Provider does not warrant or support any Third Party Software. Provider is not responsible for the operation of any Third Party Software nor the availability or operation of the Licensed Materials to the extent such availability and/or operation is dependent upon Third Party Software.
8. Reservation of Rights. Except to the extent otherwise expressly set forth in this Agreement Provider hereby reserves all rights in and to the Licensed Materials.
Services.
1. Support and Maintenance; Service Levels. During the Subscription Term, Provider will provide: (a) the Support Services for Software as and to the extent described in Exhibit A; and (b) the Software in accordance with the service levels described in Exhibit B (“SLA”).
Fees.
1. Fees and Payment. Licensee shall pay the Provider the fees set forth on each applicable Order Form (“Fees”). Fees are payable within thirty (30) days from Licensee’s receipt of an invoice (which will be a valid tax invoice where required by applicable Laws) therefor from Provider, which Provider shall deliver in accordance with the schedule set forth in the Order Form. All Fees shall be paid in U.S. Dollars.
2. Fee Increase. Provider may increase or otherwise amend the Fees by providing notice to Licensee at least forty-five (45) days prior to the end of the then-current subscription term of the amendment in the Fees, such Fee amendment to become effective on the Renewal Subscription Term following Provider’s delivery of notice of the amendment to Licensee. Licensee’s sole option to decline the Fee amendment is to terminate this Agreement in accordance with its terms. If Licensee fails to terminate the Agreement, then Licensee will be deemed to have accepted the Fee increase.
3. Taxes. Licensee will pay any applicable sales, use, value added, surtax and personal property taxes, duties, fees and other governmental assessments or charges arising out of the Agreement and the transactions contemplated herein, excluding taxes based on Provider’s income. If any deduction or withholding is required by applicable Law, Licensee shall notify Provider and shall pay Provider any additional amounts necessary to ensure that the net amount that Provider receives, after any such deduction and withholding, equals the amount Provider would have received if no deduction or withholding had been required.
Subscription Term and Termination.
1. Subscription Term. Unless earlier terminated in accordance with this Section 6, this Agreement and the license granted hereunder shall be effective as of the Order Date and shall continue through the Subscription Term set forth on the Order Form.
2. Termination for Cause. Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; (b) if the Licensed Materials become, in their entirety, subject to the circumstances described in Section 9.1.2(iii); or (c) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal, state, provincial or territorial statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
3. Effect of Termination. Upon the expiration or termination of this Agreement, unless otherwise stated herein, all rights and licenses granted by a party to the other party shall automatically terminate. Within five (5) days after termination of this Agreement, the receiving party shall return to the disclosing party or, upon the disclosing party's request, destroy, at the receiving party’s expense, all Confidential Information (as defined in Section 7.1 below) and materials containing any Confidential Information of the disclosing party (where Provider is the disclosing party, including but not limited to the credentials for the Licensed Materials, and deliver to the disclosing party a certification, in writing signed by a duly authorized representative of the receiving party, that the Confidential Information and all copies thereof have been returned or destroyed, and their use discontinued);provided however, that neither the receiving party nor any of its representatives shall be obligated to return or destroy Confidential Information to the extent it has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures as in effect from time to time. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination.
4. Survival. Sections 1, 2.2, 3, 6.3, 6.4, 7 (for five (5) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Laws), 8, 9.1 (solely with respect to claims arising during the Subscription Term), 9.2, 9.3, 9.4, 10, 11, and 12, and any and all provisions of the Exhibits which should, by their nature, survive the expiration or termination of this Agreement shall survive the expiration termination of this Agreement.
Confidentiality.
1. Nondisclosure. Provider and Licensee each agree to retain in confidence the non-public information and know-how disclosed pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Provider’s Confidential Information shall include this Agreement and all pricing terms provided to Licensee. Notwithstanding any failure to so designate them, the Licensed Materials, and the terms and conditions of this Agreement shall be Provider's Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested.
2. Exceptions. Notwithstanding the foregoing, Confidential Information shall not include information which the receiving party can demonstrate was: (i) already publicly known without breach of this Agreement; (ii) discovered, created or independently developed by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by Law or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
3. Remedies. Each party agrees and acknowledges that any breach or threatened breach of this Section 7 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in Law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by Law.
4. Feedback. Licensee may choose to or Provider may invite Licensee to submit comments or ideas about Provider’s products and services, including without limitation the Licensed Materials (“Feedback”). By submitting any Feedback, Licensee agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Provider under any fiduciary or other obligation, and that Provider is free to use the Feedback without any additional compensation to Licensee or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Licensee further acknowledges that, by acceptance of Licensee’s submission, Provider does not waive any rights to use similar or related ideas previously known to Provider, or developed by its employees, or obtained from sources other than Licensee.
Representations and Warranties.
1. Mutual. Each party hereby represents and warrants that: (a) it has full power and authority to enter into the Agreement and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its origin; and (c) it will comply with all applicable Laws in its performance of the Agreement and operation of its business.
2. Performance Warranty; Exclusive Remedy. Provider hereby represents and warrants to Licensee that: (a) during the Subscription Term, the Software will perform in accordance with the terms and conditions of this Agreement and the SLA; and (b) Provider will perform the Services in a professional and workmanlike manner. Subject to Section 10A below, Licensee’s sole and exclusive remedies for Provider’s breach of its warranty in this Section 8.2 will be to either: (a) receive a Service Credit in accordance with the terms and conditions of the SLA; or (b) terminate this Agreement for material breach thirty (30) days after providing Provider notice of its breach of this warranty and to receive a refund in accordance with Section 9.1.2.
3. Licensee Representations and Warranties. Licensee hereby represents and warrants that: (a) its use of the Licensed Materials and Services will comply with all Laws in all applicable jurisdictions; (b) it will disclose its data collection and use practices in a privacy policy that is accessible on any website and in any application, product or service that Licensee uses the Licensed Materials and Services to collect or receive information or data about Licensee’s current or prospective customers; (c) it will provide all required notices, and obtain all required consents, that relates to its collection, disclosure and use of its current and prospective customers’ information, and that relates to its use of the Licensed Materials and Services, and to allow Provider to perform its obligations and exercise its rights hereunder, including but not limited to complying with telephone recording and wiretapping Laws, and Licensee will ensure that proper consent to record is obtained prior to any such recordings; (d) it will provide all required notices related to its use of the Licensed Materials and Services; (e) it has all necessary rights, licenses and consents to post, transmit, provide, receive, access and/or use its current and prospective customers’ information and data and Licensee Inputs, and any other content it provides, receives, accesses and/or uses through or in connection with the Licensed Materials and Services; (f) it is solely responsible for clearing all rights and paying all licensing fees and other costs and expenses arising in connection with Licensee Inputs; and (g) the Licensee Inputs and Provider’s use or distribution thereof as contemplated by this Agreement, Services and the Licensed Materials, and Provider’s exercise of the rights granted in this Agreement, will not result in (i) any violation of Law or infringement or misappropriation of any rights of any third party, including without limitation any Intellectual Property rights or privacy right, (ii) any liability from Provider to any third party, or (iii) the payment by Provider of any fees to any third party.
  
  Licensee agrees that, as between the parties, Licensee is the sole initiator of any call or other communication transmitted through the Licensed Materials or Services. Provider is not responsible for reviewing the contents of any communication transmitted through the Licensed Materials or Services, nor is it responsible for obtaining any necessary consents or permissions from the message recipients. Licensee agrees to familiarize itself with and abide by all applicable Laws that place restrictions on certain types of phone calls, emails, SMS, MMS or other electronic messages and is solely responsible for all acts or omissions that occur under this Agreement. While Provider may provide features to help the Licensee comply with call recording Laws, Provider makes no representations or warranties with respect to call recording.
4. Warranty Disclaimer.
  1. General Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND SUBJECT TO SECTION 10A: (I) PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (II) THE PARTIES AGREE THAT THE LICENSED MATERIALS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” PROVIDER MAKES NO OTHER WARRANTY AS TO THE LICENSED MATERIALS OR SERVICES.
  2. Results of Use of the Licensed Materials. THE PARTIES ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO THEIR ENGAGEMENT HEREUNDER, AND THAT LICENSEE’S USE OF, AND PROVIDER’S PROVISION OF, THE LICENSED MATERIALS AND SERVICES MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE LICENSED MATERIALS AND SERVICES IS INTENDED TO BE INFORMATIVE AND SHOULD NOT BE CONSTRUED AS ADVICE. ACCORDINGLY, PROVIDER HEREBY DISCLAIMS, AND LICENSEE HEREBY EXPRESSLY RELIEVES PROVIDER FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY LICENSEE BASED IN WHOLE OR IN PART BASED ON ANY INFORMATION PROVIDED VIA THE LICENSED MATERIALS AND/OR SERVICES.
Indemnification.
1. Provider Indemnification.
  1. Provider Indemnity. Provider shall defend or settle, at its own option and expense, any suit, claim, action, or proceeding brought against Licensee by a third-party to the extent based upon a claim that the Licensed Materials infringe any U.S. patent, copyright or trademark or misappropriate any U.S. trade secret of such third-party, and will pay such damages or costs as are finally awarded against Licensee by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement that are attributable to such claim (provided that Provider may not enter into any settlement or dispose of any claim in a manner that requires Licensee to admit any liability or that places any material obligation on Licensee without its prior written consent, not to be unreasonably withheld, conditioned, or delayed).
  2. Provider Options. Should the Licensed Materials (or any portion thereof) become, or in the opinion of Provider be likely to become, the subject of such an infringement claim, Provider may, at its option (i) procure for Licensee the right to use the Licensed Materials at no cost to Licensee; (ii) replace or modify, in whole or in part, the Licensed Materials to make them non-infringing; or (iii) if neither (i) nor (ii) are, in Provider’s sole and absolute discretion, commercially practicable, accept return of the Licensed Materials, or remove the allegedly offending module thereof, and, refund the Fees paid for such the Licensed Materials or module by Licensee, less an amount determined by multiplying the Fees paid for such the Licensed Materials or such module during the then-current subscription term by a fraction, the numerator of which is the number of months during the then-current subscription term during which Licensee had use of the Licensed Materials and the denominator of which is the total number of months during the then-current subscription term.
  3. Exclusions from Provider Indemnity. Provider assumes no liability hereunder for: (i) any method or process in which the Licensed Materials may be used; (ii) any compliance with Licensee’s specifications; or (iii) the combination, operation or use of the Licensed Materials with non-Provider programs or data.
2. Licensee Indemnification. Licensee shall defend, indemnify, and hold harmless Provider and its affiliates and each of their officers, directors, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from or relating to: (a) Licensee’s breach of its representations and warranties contained in this Agreement; or (b) Licensee’s or its end-users’ (i) use of and access to the Licensed Materials in a manner inconsistent with their documentation or (ii) breach of Section 2 or 3, or (iii) gross negligence or willful misconduct.
3. Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
4. Sole Remedy for Infringement. THIS SECTION 9 SETS FORTH PROVIDER’S ENTIRE LIABILITY AND LICENSEE’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE LICENSED MATERIALS AND THIS AGREEMENT.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY LICENSEE TO PROVIDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY; AND (B) IN NO EVENT SHALL LICENSEE’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THREE TIMES (3X) THE AMOUNT PAID OR PAYABLE BY LICENSEE TO PROVIDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY FOR LICENSEE’S INDEMNIFICATION OBLIGATIONS IN SECTION 9.2(B); AND (C) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS THAT FLOWS DIRECTLY OR NATURALLY FROM THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE LOSS, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
1. Exclusions. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE FOREGOING LIMITATIONS IN SECTION 10 WILL NOT APPLY TO: (I) PROVIDER’S INDEMNITY OBLIGATIONS IN SECTION 9.1.1; (II) LICENSEE’S INDEMNIFICATION OBLIGATIONS IN SECTION 9.2(A); (III) BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 7; OR (IV) A PARTY’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Additional Terms for Australian Licensees. If the Licensee is located in Australia, the following terms apply:
1. Consumer Guarantees. Provider’s goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Software, Licensee is entitled: (i) to terminate this Agreement; and (ii) to receive a refund for the unused portion, or to compensation for its reduced value. Licensee is also entitled to choose a refund or replacement for major failures with goods. If a failure with the Licensed Materials does not amount to a major failure, Licensee is entitled to have the failure rectified in a reasonable time. If this is not done, Licensee is entitled to a refund for the Licensed Materials and to terminate the Agreement and obtain a refund of any prepaid fees prorated for the remainder of the term following such termination. Licensee is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Licensed Materials.
2. Limitation. If clause 10A.1 applies and Provider’s liability for failing to comply with the guarantee cannot be excluded but may be limited, Provider’s liability for that failure is limited to (at the election of the Provider), in the case of a supply of goods, Provider replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Provider supplying the services again or paying the cost of having the services supplied again.
General.
1. Foreign Corrupt Practices Act. The parties shall comply with all applicable anti-corruption Laws, including, without limitation, the UK Bribery Act 2010, the US Foreign Corrupt Practices Act 1977 the Criminal Code (Canada) and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), and will not pay or give, offer or promise to pay or give, or authorize the promise, payment or giving directly or indirectly of any monies or anything of value to any person or firm, including, but not limited to, those employed by or acting for or on behalf of any governmental customer, any government official or employee, any political party, any employee of any political party, any member of a ruling or royal family, or any candidate for political office for the purpose of inducing or rewarding any favorable action in any matter related to the subject of the Agreement or the business of the other party. Each party agrees to promptly report to the other party any potential or actual violations of any anti-corruption Laws relating to the Agreement or the business of the other party of which it obtains knowledge and cooperate in good faith with the other party in investigating any such violation.
2. Assignment. Each party shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of Law or otherwise, to any third party without the other party’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, each party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section 11.2, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
3. Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section 11.3 (each a “Force Majeure Event”), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
4. Governing Law; Dispute Resolution. This Agreement shall in all respects be governed by the Laws of the State of California without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods. Subject to the following arbitration requirements, the parties hereby agree that all litigation arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within Santa Clara County, California. The parties hereby consent to the personal and exclusive jurisdiction and venue of these courts. For any dispute in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after thirty (30) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in Santa Clara County, California, unless otherwise agreed. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 11.4 shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.
5. Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
6. Marketing. Provider may use Licensee’s name and logo for the purposes of marketing.
7. Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when (i) delivered in person (including by overnight courier), (ii) or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified on the Order Form or such other address as either party may specify in writing; or (iii) the date sent by email to the contact or billing email address listed on the Order Form. Any reference in this Agreement to “written notice” shall include notice by email, where such email notice originated either from a valid Licensee or Provider email address and was delivered to the contact or billing email addresses listed on the Order Form, as the case may be, and may be relied upon as valid and authentic written communication.
8. U.S. Government Restricted Rights. If the Licensed Materials are being licensed by the U.S. Government, the Licensed Materials are commercial computer software and documentation developed exclusively at private expense, and (i) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (ii) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
9. Export Law Assurances. Licensee understands that the Licensed Materials are or may be subject to export control Laws. LICENSEE MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE LICENSED MATERIALS OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES AND CANADIAN EXPORT CONTROL LAWS. NONE OF THE LICENSED MATERIALS OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES OR CANADA HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES OR LISTED, NAMED OR DESIGNATED PERSON UNDER CANADIAN LAWS AND REGULATIONS. LICENSEE HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT LICENSEE IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
10. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
11. Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
12. Costs. If any action at Law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Entire Agreement; Modification; Waiver; Severability. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Licensee acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. Except as otherwise provided herein, no modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. Except as otherwise provided herein, no online (clickwrap, browsewrap, or other) posted terms, nor any ordering documents, apply. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under applicable Law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.

Exhibit A - Support Services

The following detailed support standards are the responsibility of the Provider in the ongoing support of the Agreement.

Support Standards - During the term of this Agreement, Licensee may initiate Trouble Tickets through a customer support online portal at support.orum.com 7 days a week / 24 hours a day and live in-product chat from 8am to 8pm EST Monday – Friday (excluding U.S. Federal holidays). Provider will only respond to tickets Monday – Friday from 8am to 8pm EST (“Support Window”) (excluding U.S. Federal holidays), and all Initial Response Times relate to the start of the support window following the submission of a Trouble Ticket. Provider reserves the right to provide reduced support hours during certain times of each year that coincide with major U.S. Holidays (such as between December 18 and January 1). Any such reduction in support hours will be communicated in-product at least 48 hours prior to such event. Provider shall respond and resolve all ticket requests based on the severity level according to the following charts.

Severity Levels

Severity 1 (Critical)	Software is stopped or so severely impacted that Licensee cannot reasonably continue to work within the Software.	The operation is mission critical to Licensee’s business and the situation is an emergency.
Severity 2 (High)	The issue is a high-impact business condition where the Licensee experiences a major degradation in the Software.	An error isolated to the Software which substantially degrades the performance or materially restricts Licensee’s business.
Severity 3 (Medium)	Licensee experiences a minor loss of the Software.	An error isolated to the Software which causes only a moderate impact on the use of the Software (e.g., moderate system impact, performance/operational impact) -- the impact is an inconvenience, which may require a workaround to restore functionality.
Severity 4 (Low)	A reported anomaly in the Software which does not substantially restrict the use of one or more features to perform necessary business functions.	This is a minor problem that does not prevent access to or impede the Software’s operation. Licensee requests information or documentation clarification regarding the Software.

Response & Resolution Times

	Sev 1 (Critical)	Sev 2 (High)	Sev 3 (Medium)	Sev 4 (Low)
Initial Response Times	1 hour (excluding weekends)	4 hours (excluding weekends)	1 business day	2 business days
Resolution Times	1 business day to the extent commercially feasible	10 business days to the extent commercially feasible	30 business days to the extent commercially feasible	To be determined on a case-by-case basis

Exhibit B - Service Level Agreement

Service Commitment – Provider will use commercially reasonable efforts to make the Software available 99.9% of the time. In the event the Software does not meet the goal of 99.9% availability in a given calendar month (“Monthly Uptime Percentage”), you will be eligible to receive a Service Credit as described below.
Definitions – The following capitalized terms shall be given the meaning set forth below:
1. “Unavailable Time” means that the Software is not available for use according to third party performance and monitoring services contracted by the Provider at its sole discretion (the “Monitoring Service”), provided that service issues or outages relating to any Exclusions (defined below) shall not be deemed as Unavailable Time.
2. “Monthly Uptime Percentage" is calculated by subtracting from 100% the percentage of continuous 5 minute periods during the service month in which the Software was in a state of “Unavailable Time” as identified by Monitoring Service
3. A “Service Credit” is a dollar credit, calculated as set forth below, that Provider may credit back to an eligible Licensee account:
  1. For a calendar month where the Uptime Monthly Percentage, as identified by Monitoring Service, is below the Service Commitment, Provider, at its sole discretion after confirming the nature and accuracy of the Unavailable Time, will credit Licensee in accordance with the following table:
    Monthly Uptime Percentage Service Credit (% of Fees attributable to the Software for the month in which the Unavailable Time)
    99.0% - < 99.9% 5%
    95.0% - < 98.9% 7%
    90.0% - < 94.9% 10%
    < 89.9% 100%
  2. Service Credit shall be issued to Licensee’s Provider balance for future use only. No refunds or cash value will be provided. Service Credits may not be transferred or applied to any other account.
Credit Request and Payment Procedures – To apply for a Service Credit, the Licensee must submit a ticket at support.orum.com within 30 days of the month in which the Unavailable Time occurred. The ticket must include (i) "SLA Claim" as the subject of the email; (ii) the dates and times of the Unavailable Time for which you are requesting credit; and (iii) any applicable information that documents the claimed outage.
Exclusions – Notwithstanding anything to the contrary, no Unavailable Time shall be deemed to have occurred with respect to the Software if it is (i) caused by factors outside of the Provider’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of the Provider or its direct hosting subcontractors (i.e. beyond the point in the network where Provider maintains access and control over the Software); (ii) results from any actions or inactions of Licensee or any third party (other than the Provider’s direct hosting subcontractor); (iii) results from Licensee’s applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within the Provider’s direct control); or (iv) arises from the Provider’s suspension and termination of Licensee’s right to use the Software in accordance with the Agreement, (v) is caused by scheduled maintenance; or (vi) is caused by problems or issues related to alpha, beta or not otherwise generally available Software features or products (collectively, the “Exclusions”).
Sole Remedy – Subject to Section 10A of the Agreement, Service Credits shall be your sole and exclusive remedy for any Unavailable Time or non-performance of the Provider Services or other failure by the Provider to provide the Software.

Monthly Uptime Percentage	Service Credit (% of Fees attributable to the Software for the month in which the Unavailable Time)
99.0% - < 99.9%	5%
95.0% - < 98.9%	7%
90.0% - < 94.9%	10%
< 89.9%	100%