February 1, 2022
Master Services Agreement
THIS MASTER SERVICES AGREEMENT (this “Agreement”) governs the acquisition and use of Subscription Services by Customer (defined below). By executing an Order Form (defined below) that references this Agreement, you, as or on behalf of Customer, agree to this Agreement. By executing an Order Form on behalf of a company, corporation or other legal entity (“Customer”), you represent that you have the authority to bind that legal entity to this Agreement. The effective date of this Agreement (“Effective Date”) is the effective date of the first Order Form that Customer executes with ORM Technologies, LLC, a Delaware limited liability company (“ORM”). ORM and Customer are each a “Party” hereto, and collectively, they are the “Parties” hereto.
A. ORM will provide and Customer agrees to use certain Subscription Services during the Term of this Agreement.
B. The Parties desire to set forth in writing the terms and conditions of the Subscription Services as described in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound, hereby agree as follows:
Customer agrees to the privacy policies incorporated herein by reference available at the following url: https://orm-tech.com/company/legal/privacy-policy/.
Capitalized terms used but not otherwise defined in this Agreement have the following meanings:
(a) “Affiliate” means any corporation or other entity that directly or indirectly controls, is controlled by, or is under the common control with a Party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, whether through ownership of voting securities or equity interests, through common directors, trustees or officers, by contract or otherwise.
(b) “Confidential Information” has the meaning as set forth in Section 6.
(c) “Customer” means the non-ORM party to the Agreement that has access to Subscription Services.
(d) “Customer Data” means any data, information or material originated by Customer that Customer submits to ORM through its use of Services or provides to ORM while using the Services.
(e) “Customer Materials” means all information, methodologies, data, ideas, concepts, materials, templates, know-how, techniques, documentation, software and applications that Customer possesses prior to the commencement of ORM’s Services or which it develops independently of any activities governed by this Agreement, and any derivatives, modifications or enhancements made to any such property (including by ORM).
(f) “Deliverables” means any copyrightable works, products, discoveries, developments, designs, work-product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by ORM that result from Professional Services and are provided to Customer hereunder pursuant to the applicable Order Form or Statement of Work.
(g) “Disclosing Party” has the meaning as set forth in Section 6.
(h) “Go Live Date” means the date on which the Subscription Services under an Order Form are made available by ORM for use by Customer and its Users in accordance with this Agreement.
(i) “Initial Term” has the meaning as set forth in Section 5.
(j) “Intellectual Property” shall mean all: (i) U.S. and foreign issued patents and pending patent applications, patent disclosures, and any and all provisional applications, divisions, continuations, continuations-in-part, reissues, reexaminations, requests for continued examination and extension thereof, any counterparts claiming priority therefrom, design patents, semiconductor mask work rights, utility models, patents of importation/confirmation, certificates of invention and like statutory rights; (ii) proprietary ideas, technology, inventions (whether or not patentable), innovations, discoveries, know-how, processes, trade secrets, methods, compositions, formulae, algorithms, procedures, protocols, plans, products, prototypes, models, techniques, confidential information, documentation, results of experimentation and testing, information, data and databases, source code and object code, whether embodied in software, firmware or otherwise, developments, works of authorship, performances, user interfaces and designs; (iii) U.S. and foreign registered and unregistered copyrights (including those in computer software and databases), rights of publicity, rights of privacy, moral rights, and all registrations and applications to register the same; (iv) U.S. and foreign registered and unregistered trademarks, trade dress, service marks, design marks, logos, trade names, corporate names and all registrations and applications to register the same, together with the goodwill associated therewith, and in each of (i) through (iv) including the right to sue for past infringement thereof.
(k) “Malicious Code” means any undocumented malicious data, code, program, or other internal component (e.g., computer worm, computer time bomb or similar component), which could damage, destroy, alter or disrupt any computer program, firmware or hardware, or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by a Subscription Services or ORM’s computer systems in any manner.
(l) “Order Form” means any order form that may be entered into from time to time between Customer and ORM, and all amendments, modifications and supplements thereto, all of which are incorporated herein by this reference.
(m) “ORM Technology” means: (i) the Software, technology, methodologies and intellectual property (including, without limitation, products, software tools, hardware designs, algorithms, software (in source and object code forms), architecture, objects and documentation (both printed and electronic)) existing as of the Effective Date or otherwise arising outside of this Agreement that is owned or controlled by ORM; (ii) all derivatives, improvements, enhancements or extensions of any of the foregoing, whether or not conceived, reduced to practice or developed during the Term; and (iii) all Intellectual Property relating to any of the foregoing.
(n) “Output” shall mean any reports, insights or other output of the Subscription Services specific to Customer or the Customer Data.
(o) “Receiving Party” has the meaning as set forth in Section 6.
(p) “Renewal Term” has the meaning as set forth in Section 5.
(q) “Representatives” of a Party means any and all officers, directors, employees, consultants, contractors, agents, attorneys, accountants, financial advisors, and other representatives of such Party.
(r) “Software” means that certain proprietary business efficiency software that ORM develops and may modify and adapt based on Customer’s specific business and business requirements.
(s) “Statements of Work” (or “Statement of Work,” as applicable) means those statements of work that may be attached to an Order Form to provide a more detailed description of the services to be provided by ORM to Customer.
(t) “Subscription Services” means the ORM Software application and any other software applications and services, which are ordered by Customer pursuant to an Order Form and made available by ORM to Customer and its Users as a software as a service (SaaS) offering via log-in credentials on a website designated by ORM, and the implementation of such services.
(u) “Term” has the meaning specified in Section 5.
(v) “Users” means individuals who are authorized by Customer to use the Subscription Services, and who have been supplied with user identifications and passwords by Customer (or by ORM at Customer’s request). “Users” may include Customer’s employees and any on-site contract employees who perform services solely under the direction of Customer and solely for or on behalf of Customer from its offices or facilities. Under no circumstances does “Users” include any consultants, off-site contractors or other personnel of Customer or any third parties.
2. Subscription Services.
ORM shall provide Customer the Subscription Services as set forth in this Agreement.
(a) Grant of Use Rights. Subject to the terms and conditions of this Agreement and the applicable Order Form(s), ORM hereby grants to Customer (and only for the specific Users identified by Customer), for its internal business purposes and for no other purpose, a non-exclusive, non-transferable right during the Term to access and use the Subscription Services specified in the Order Form(s) for the number of Users specified in such Order Form(s). Customer shall appoint one prime User who shall be responsible for managing all of Customer’s Users log in credentials under this Agreement.
(b) Customer Data and End-User Data. Customer hereby grants to ORM, its affiliates and applicable contractors a non-exclusive, non-transferable, worldwide right to use Customer Data strictly for the limited purpose of providing the Subscription Services to Customer. ORM shall not (i) disclose Customer Data except as compelled by applicable law or as expressly permitted in writing by Customer or (ii) access Customer Data except to provide the Subscription Services to Customer and to prevent or address service or technical problems, or if requested by Customer in connection with customer support matters. In the event of any loss or damage to Customer Data caused by ORM, as an accommodation to Customer, ORM will use commercially reasonable efforts to attempt to restore the lost or damaged Customer Data, but ORM has no liability or obligation to Customer therefor. If Customer uses a Third-Party Content and Services provider with any Subscription Services, Customer hereby grants ORM permission to access the Third-Party Materials. “Third-Party Content and Services” means any service that is not provided by ORM’s Subscription Services that Customer utilizes to manage any of the Properties and such service integrates with the Subscription Services provided by ORM. Customer hereby grants to ORM a non-exclusive, non-transferable license to use, reproduce, prepare derivative works from, distribute, sell and otherwise commercially exploit End-User Data, provided that any use of such End-User Data shall be on an aggregated and non-personally identifiable basis. “End-User Data” means any and all data regarding the website’s end-users and such users’ website activities, habits, preferences, and the like.
(c) Data Security. ORM shall maintain administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data. To the extent permitted by applicable law, ORM shall promptly notify Customer of any actual unauthorized acquisition of Customer Data in ORM’s control (a “Security Incident”). In the event the Security Incident was directly caused by ORM’s failure to meet or exceed industry standard technical safeguards, ORM shall use commercially reasonable efforts to identify and remediate the cause of such Security Incident.
(d) Use of De-Identified Data. Notwithstanding anything to the contrary contained in this Agreement, ORM has the right, during and after a Term, to use, reproduce and distribute aggregate and de-identified data derived from use of the Subscription Services, for any lawful purpose, including, but not limited to, publication of white papers, industry comparisons, product development and improvement, and benchmarking, provided that ORM complies with all applicable laws in using such data. Such de-identified data is the sole and exclusive property of ORM.
(e) Customer Responsibilities. Customer is responsible for the following: (i) Customer’s required participation in the implementation of the Subscription Services; (ii) using the most current licensed versions of an Internet browser in connection with accessing and using the Subscription Services; (iii) protecting the names and passwords of the Users of the Subscription Services; (iv) preventing, and promptly notifying ORM of, any unauthorized access to or use of the Subscription Services; (v) the reliability, integrity, accuracy, quality and lawfulness of, and the results obtained from, all Customer Data submitted by Users; (vi) each User’s compliance with the terms and conditions of this Agreement and each User’s acts and omissions; (vii) using the Subscription Services within the permitted scope and limitations and only in accordance with this Agreement and the Order Form(s), and any guidelines communicated by ORM to Customer; (viii) maintaining archival and backup copies of all Customer Data (and any prior versions thereof) outside of the instance being used by ORM to provide the Subscription Services; (ix) obtaining, at Customer’s sole expense, valid licenses to any and all third party information, data and/or materials (collectively, “Third-Party Materials”) that Customer, directly or indirectly, provides or makes available to ORM or otherwise utilizes within the Subscription Services; and (x) using the Subscription Services in accordance with applicable laws.
(f) Restrictions. Customer shall not release to any third party the results of any evaluation of the Subscription Services performed by or on behalf of Customer for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of ORM. Customer shall not (and shall not permit others to): (i) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share the Subscription Services, or make it available for access by third parties, including, without limitation, in the manner of a service bureau or hosted application; (ii) create derivative works based on or otherwise modify the Subscription Services or ORM Technology; (iii) disassemble, reverse engineer or decompile the Subscription Services or the ORM Technology; (iv) access the ORM Technology, Subscription Services or information related to the ORM Technology or Subscription Services in order to develop a competing product or service; (v) use the ORM Technology or Subscription Services to provide a service for others; (vi) use, include, store or send Malicious Code from the ORM Technology or Subscription Services; (vii) interfere with the integrity of the ORM Technology or Subscription Services or its data; (viii) remove or modify a copyright or other proprietary rights notice on or in the ORM Technology or Subscription Services; (ix) use the ORM Technology or Subscription Services to reproduce, distribute, display, transmit or use material protected by copyright or other Intellectual Property Right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (x) use a computer or computer network to cause physical injury to the property of another; (xi) violate any law or regulation of the United States, any state thereof or other governmental authority; (xii) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the ORM Technology or Subscription Services; (xiii) disrupt the integrity of the ORM Technology or Subscription Services; or (xiv) alter, disable, or erase any computer data, computer programs or computer software without authorization.
(g) Third Party Vendors. To the extent that Customer elects to utilize the services of third-party vendors to provide additional service functionality that may integrate with the Subscription Services, Customer acknowledges that it does so at its own risk and that ORM has no liability therefor. Customer further acknowledges that ORM makes no, and specifically disclaims any and all, representations, warranties and agreements with respect to such third-party vendor services.
(h) ORM to Host and Operate the Software and Subscription Services: ORM will host the Software and Subscription Services on its own or leased or licensed servers, and Customer will access the Subscription Services on demand using standard web interfaces specified by ORM.
(i) Back-up Copies: ORM will maintain at least one back-up or archival copy of the Software to support Customer’s use of the Software as allowed under this Agreement. Printed documentation may not be copied. Documentation in soft copy may be printed or duplicate for internal use by Customer directly related to the purposes set forth in the Agreement and subject to the other terms of the Agreement.
(j) ORM Audit Rights: ORM reserves the right to audit the Customer’s usage of the Subscription Services at ORM’s sole cost and expense, upon no less than 15 days prior written notice and no more than one time per year. If use not certified by this Agreement is found, Customer agrees to stop such use immediately upon receipt of written notice.
(k) Export Restrictions: Customer recognizes and agrees to fulfill all export and re-export limits and policies of the Department of Commerce or other United States agency or authority. Without limiting the foregoing or any other provision of this Agreement, Customer agrees to comply with all applicable federal law in this respect and not to download or transfer (or authorize anyone to download or transfer) the Software or Subscription Services to anyone that is legally prohibited by federal law to receive or use the Software or the Subscription Services. Customer shall indemnify and hold ORM harmless from any third-party claims related to Customer’s failure to fulfill these and other applicable export rules.
(l) Third-Party Software: Customer accepts that the proper execution of the Subscription Services requires certain third-party software and that ORM may at its sole discretion choose to obtain certain third-party software from third parties. In any event, Customer accepts that ORM is not accountable for any issues linked to third-party software that Customer separately licenses and that Customer’s use of such third-party software shall be subject to the appropriate end user license terms between Customer and such third party. Any third-party software that Customer will be required to separately license shall be defined in each Order Form or Statement of Work.
3. Fees and Expenses.
(a) As consideration for the Subscription Services to be provided under this Agreement, Customer will pay ORM an annual subscription fee for the Subscription Services fees as set forth in the Order Form.
(b) Customer shall reimburse ORM for all reasonable travel and other ordinary and necessary business expenses incurred by ORM in connection with providing the consulting services, if any, and, the Subscription Services provided under this Agreement. ORM shall obtain Customer’s prior written approval before incurring such expense. To obtain reimbursement, ORM shall submit to Customer receipts, bills or sales slips for the expenses incurred. Customer shall make reimbursements monthly within ten business days of presentation by ORM of evidence of the expenses incurred.
(c) Any additional or expanded consulting services will be billed for by ORM at ORM’s then current (or as otherwise mutually agreed upon) daily rates for full time equivalent resources, costs and materials.
(d) Any payments due under this Agreement will be due and payable within thirty (30) days of ORM’s delivery of an invoice for such services specified in the invoice. Any sums due under this Agreement that are not paid when due will thereafter bear interest at a rate equal to 5% per annum, but in no event will the interest rate exceed the maximum allowed by applicable law.
(e) All amounts payable under this Agreement and any Order Form or Statement of Work are (i) exclusive of any sales, use, excise, value added, goods and services, and gross receipts taxes, and any and all similar taxes or legally imposed fees, duties or contributions based upon such amounts, this Agreement and any Order Form or Statement of Work, except for franchise or margin taxes, if any, or taxes based upon the net income of ORM; and (ii) reflect the net cash payable to ORM, net of any and all such taxes, levies, fees and withholdings of every kind or nature. All such taxes, levies, fees and withholdings and the obligation to pay such amounts to the appropriate taxing authorities in a timely manner are the sole responsibility of Customer.
(f) All Subscription Services are subject to review and potential fee increases with respect to Customer’s use of any Subscription Services by providing Customer no less than forty five (45) days notice of such increase prior to the expiration of the then current Term.
(g) Customer will make all payments due to ORM under this Agreement in United States dollars, by wire transfer to the account designated by ORM.
4. Term and Termination.
(a) The initial term of this Agreement commences on the Effective Date and shall continue for a period of twelve months from the Effective Date, unless otherwise specified in an applicable Order Form (the “Initial Term”), and will automatically renew for successive twelve month periods commencing at the end of the prior term (each, a “Renewal Term”) (the Initial Term, together with all Renewal Terms (if any), shall collectively be the “Term”), unless (i) either Party provides notice of non-renewal no less than 30 days’ prior to the end of the Initial Term or then-current Renewal Term, as applicable or (ii) earlier terminated as provided in this Section 5. This Agreement establishes and governs term of the subscription for Customer’s use of any Subscription Services, including but not limited to the annual renewal date for any applicable Subscription Services on all Order Forms executed from the Effective Date forward.
(b) If there are no Order Forms or Statements of Work then in effect, then either Party may terminate this Agreement with ten days’ prior written notice to the other Party.
(c) In the event that: (i) either Party commits any material breach of this Agreement or under an Order Form or Statement of Work and (ii) such material breach is not cured within 60 days (or within five days with respect to a failure to make any payment required hereunder) after the non-breaching Party gives to the breaching Party written notice of such material breach, then the non-breaching Party will be entitled to terminate this Agreement and/or any Order Form or Statement of Work immediately upon written notice thereof to the breaching Party.
(d) Notwithstanding anything to the contrary in this Agreement, ORM shall have the right to immediately terminate this Agreement in the event Customer breaches either Section 3(f) or Section 5(c).
(e) In the event that either Party: (i) voluntarily or involuntarily becomes the subject of a petition in bankruptcy or of any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors that is not dismissed or discharged within 60 days after being commenced; (ii) admits in writing its inability to pay its debts generally as they become due (or takes any corporate action tantamount to such admission); (iii) makes an assignment for the benefit of its creditors; or (iv) ceases to do business as a going concern; then in any such instance, the other Party will be entitled to terminate this Agreement immediately upon written notice thereof to the first Party.
(f) In the event of any termination pursuant to either Section 4(c), Section 4(d), or Section 4(e), then the terminating Party will be entitled to all other rights and remedies which such Party may have under this Agreement and under applicable law.
(g) Upon termination of this Agreement, Customer shall immediately destroy all of ORM’s Confidential Information.
(a) Definition; Exclusions. As used in this Agreement, the term “Confidential Information” means all confidential or proprietary information belonging to either Party hereto (the “Disclosing Party”) and disclosed or made available to the other Party (the “Receiving Party”), whether orally, in writing, by computer memory or other media, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” includes: (a) with respect to Customer, Customer Data; (b) with respect to ORM, the Subscription Services, all pricing and pricing proposals presented to Customer by ORM, the ORM Technology, and the terms and conditions of this Agreement and the Order Forms and Statements of Work; (c) with respect to each Party, its business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party; and (d) all reports, analyses, compilations, studies, or other documents prepared by a Party or its Representatives which contain or otherwise reflect any Confidential Information of the other Party. “Confidential Information” does not include information that the Receiving Party can document: (i) is or becomes (through no improper action or inaction by the Receiving Party or any Affiliate, agent, consultant or employee) generally available to the public; (ii) was in its possession or properly known by it, without restriction, prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it by a third party without restriction; or (iv) is independently developed by the Receiving Party subsequent to such disclosure, by employees without access to, or use of, the Disclosing Party’s Confidential Information.
(b) Restrictions on Use. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose whatsoever except to the extent necessary in order to perform its obligations or exercise its rights under this Agreement.
(c) Disclosure. The Receiving Party shall: (i) hold the Disclosing Party’s Confidential Information in strict confidence and treat such Confidential Information with at least the degree of care that it treats its own similar information but no less than a reasonable degree of care; and (ii) not disclose such Confidential Information to any other person or entity or to any of its Representatives except Representatives who are required to have Confidential Information in connection with such purpose, and then only such Representatives who have signed confidentiality agreements with the Receiving Party or that are subject to professional duties of confidentiality that are no less stringent than those contained herein. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to a court or other governmental authority to the extent that such disclosure is required by governmental order, subpoena, or by law, provided that: (a) the Receiving Party notifies the Disclosing Party in writing of such required disclosure as soon as reasonably possible prior to such disclosure and in any event at least five business days prior to such disclosure, specifying in detail the reasons why such disclosure is required; (b) the Receiving Party discloses only that portion of the Confidential Information that it is advised by its counsel that it is legally compelled to disclose; (c) the Receiving Party uses commercially reasonable efforts to cause such disclosed Confidential Information to be treated by such governmental authority as trade secrets and as confidential; and (d) the Receiving Party uses commercially reasonable efforts to obtain such other protective orders and protections with respect thereto as the Disclosing Party may reasonably request.
6. Nondisclosure and Nonuse of Third-Party Information.
ORM will not disclose to Customer, use in providing Subscription Services to Customer, or cause Customer to use, any information or material that is confidential to any third party, unless ORM has a written agreement with such third-party allowing Customer to receive and use such information or materials. ORM will not incorporate into ORM’s Subscription Services any material that is subject to the proprietary rights of any third party, unless ORM has the right to incorporate such material.
7. Intellectual Property and Inventions.
(a) Customer agrees that, excluding materials containing Customer’s Confidential Information, all originals and all copies of all consulting work product, reports, diagrams, notes, memoranda, and other materials and writings containing, representing, evidencing, recording, or constituting any Intellectual Property, or any Developments (as defined below), however and whenever produced (whether by ORM or others), and whether or not patentable or subject to copyright protection, shall be the sole property of ORM and shall be returned to ORM upon the expiration or termination of the Agreement for any reason.
(b) Customer agrees that all Intellectual Property and Developments conceived, developed or otherwise made by ORM or its employees or contractors during the term of this Agreement, not containing or based on Customer’s Confidential Information or any software license granted under this Agreement, alone or jointly with others and relating to (a) ORM’s present Software, Subscriptions Services, products, programs or services, (b) software, products, programs or services proposed to be developed by ORM during the term of this Agreement, or (c) tasks assigned to ORM during the Term, whether or not subject to patent or copyright protection, whether or not reduced to tangible form or reduced to practice and whether or not made during ORM’s regular working hours or on Customer’s premises (collectively referred to herein as “Developments”) shall be the sole property of ORM. Customer agrees that all such Developments shall expressly not constitute works made for hire under the copyright laws of the United States and, to the extent such Developments are not by law deemed to belong exclusively to ORM, Customer hereby assigns and, to the extent any such assignment cannot be made at present, Customer hereby agrees to assign to ORM all right, title and interest in such Developments and in all copyrights, patents, reproduction and other proprietary rights in any such Development, together with the right to file for or own wholly without restriction United States and foreign patents, trademarks and copyrights with respect thereto.
(c) During and after the Term of this Agreement, each of ORM and Customer shall execute, acknowledge, seal and deliver all documents, including, without limitation, all instruments of assignment, patent and copyright applications and supporting documentation, and perform all acts, that ORM may request to secure its rights hereunder and to carry out the intent of this Agreement. In furtherance of the undertaking in the immediately preceding sentence, Customer specifically agrees to assist ORM, at ORM’s expense, in every proper way to obtain for its sole benefit, in any and all countries, patents, copyrights or other legal protection for all Developments that by virtue of this Section 8 hereof are the sole property of ORM. Customer further agrees that if ORM is unable, after using its reasonable efforts, to secure Customer’s signature on any such documents, any executive officer of ORM shall be entitled to execute any such documents as the agent and attorney-in-fact of ORM determines is reasonably necessary, and Customer hereby irrevocably designates and appoints each executive officer of ORM as its agent and attorney-in-fact to execute any such documents on its behalf, and to take any and all actions as ORM may deem necessary or desirable in order to protect its rights or interests in any Development under the conditions described in this sentence. Customer acknowledges that the foregoing powers are coupled with an interest and shall not be revocable by Customer in any manner for any reason.
(d) Customer shall have a perpetual, irrevocable, royalty-free, non-exclusive, worldwide license to copy, modify and use such Developments.
(e) Customer will own all right, title and interest in and to all Customer Data and Output.
(f) For the avoidance of doubt, Developments do not include, and Customer will own all right, title and interest in and to all Customer Materials.
Any notice or statement to either Party that is required under this Agreement must be in writing and shall be sent by (i) certified mail, return receipt requested, postage prepaid, or (ii) by courier, such as Federal Express, UPS, DHL or the like, or (iii) manually signed email directed to the other Party at its mailing address, or email address, as the case may be, set forth below or in an Order Form, or to such other mailing address, or email address as the Party may from time to time designate by prior notice in accordance herewith:
If to ORM:
ORM Technologies, LLC
10000 N Central Expy, STE 775
Dallas, TX 75231
If to Customer:
As set forth in an Order Form
Any such notice, report or statement sent in accordance with this Section 9 shall be deemed duly given upon dispatch, subject to proof of receipt.
9. Independent Contractor.
ORM is an independent contractor and assumes full responsibility for the payment of all taxes, including social security, unemployment and withholding taxes, for itself and for all persons engaged by ORM in the performance of the services hereunder. ORM shall not have the right to participate in any employee benefit program of Customer. ORM is not and shall not represent itself as authorized to act on behalf of Customer, except when specifically authorized to do so by Customer in writing.
10. Warranties and Disclaimer of Warranties; Limitation of Liabilities.
(a) By Customer. Customer hereby represents and warrants to ORM as follows:
i. Organization and Validity. Customer is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, and this Agreement has been duly authorized by all necessary corporate (or other entity) action. This Agreement is the legal, valid, and binding obligation of Customer, enforceable against Customer in accordance with its terms.
ii. Compliance with Laws. Customer and Customer’s Users will comply with all laws, rules, regulations, ordinances, and codes that are applicable to accessing and using the Subscription Services.
(b) By ORM. ORM hereby represents and warrants to Customer as follows:
i. Organization and Validity. ORM is duly organized, validly existing, and in good standing under the laws of the State of Texas, and this Agreement has been duly authorized by all necessary corporate action. This Agreement is the legal, valid, and binding obligation of ORM, enforceable against ORM in accordance with its terms.
ii. Compliance with Laws. ORM will comply with all laws, rules, regulations, ordinances, and codes that are applicable to providing the Subscription Services.
11. Limited Subscription Services Warranty.
ORM warrants that, during the Term, the Subscription Services (exclusive of any applications or program code created by or on behalf of Customer) will perform in material accordance with the applicable documentation and specifications provided by ORM to Customer. If ORM breaches this warranty, then Customer’s sole and exclusive remedy, and ORM’s entire liability, is for ORM to correct or work around the non-conformity within a reasonable period of time (not less than 60 days) after its receipt during the Term of written notice from Customer containing a detailed description of the alleged breach. If ORM is unable to correct or work around the non-conformity as warranted, then Customer may terminate the affected Subscription Services and ORM will refund any prepaid subscription fees for such Subscription Services for the period covering the remainder of the Term after the effective date of termination. This Section sets forth Customer’s exclusive rights and remedies (and the sole liability of ORM) in connection with any defect or other failure of the Subscription Services to perform in accordance with the documentation and specifications.
12. DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, ORM MAKES NO REPRESENTATIONS, WARRANTIES OR AGREEMENTS WITH RESPECT TO THE SUBSCRIPTION SERVICES, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND ORM SPECIFICALLY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES ARISING UNDER STATUTE, WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM USAGE OR TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. ORM SPECIFICALLY DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THEY WILL BE ACCURATE OR OPERATE WITHOUT INTERRUPTION OR ERROR. ORM MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING, WITHOUT LIMITATION, THE SECURITY, INTEGRITY, EFFICIENCY OR CAPABILITIES OF THE SUBSCRIPTION SERVICES AND CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ALL DECISIONS IT MAKES WITH REGARDS TO OPERATION OF ITS BUSINESS AND OPERATIONS. CUSTOMER ACKNOWLEDGES THAT IN ENTERING INTO THIS AGREEMENT IT HAS NOT RELIED ON ANY PROMISE, REPRESENTATION OR WARRANTY NOT EXPRESSLY SET FORTH HEREIN.
13. LIMITATION OF LIABILITY.
THE CUMULATIVE, AGGREGATE LIABILITY OF ORM TO CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ALL ORDER FORMS AND STATEMENTS OF WORK HEREUNDER WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO ORM HEREUNDER FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL ORM BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING IN ANY WAY OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER FORMS HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOST REVENUE, LOSS OF USE, LOSS OF DATA, COSTS OF RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM, OR DATA, OR CLAIMS BY ANY THIRD PARTY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS
(a) ORM shall indemnify and hold Customer and its officers, directors, employees and agents (each, a “Customer Indemnitee”) harmless from any losses, claims, damages, liabilities, costs and other expenses, including reasonable attorneys’ and experts’ fees and court costs, incurred by a Customer Indemnitee arising out of any action against a Customer Indemnitee or its affiliates by any third party, including any claim that the Services, Developments or Software, as used within the scope of the license granted under this Agreement, infringes or violates a patent, copyright, trademark, trade secret or other intellectual property right or violate any applicable law or regulation except for any such losses, claims, damages, liabilities, costs and other expenses relating to the breach of this Agreement by Customer or the negligence or willful misconduct of Customer.
(b) Customer shall indemnify and hold ORM and its officers, directors, employees and agents (each an “ORM Indemnitee”) harmless from any losses, claims, damages, liabilities, costs and other expenses, including reasonable attorney’s and experts’ fees and court costs, incurred by an ORM Indemnitee arising out of any action against an ORM Indemnitee or its affiliates by any third party caused by the negligence or willful misconduct of Customer.
(c) An Indemnitee shall inform the indemnifying party promptly in writing of any indemnification claim. An Indemnitee shall not enter into any negotiation, resolution or settlement of an indemnification claim without the written permission of the indemnifying party. The indemnifying party shall have sole control of any negotiation, litigation, resolution or settlement, and the Indemnitee shall provide the indemnifying party with information and support, at the indemnifying party’s cost, necessary to negotiate, litigate, resolve or settle such claim.
(d) If a third party asserts that the Software or Developments infringe the third party’s intellectual property rights, or in the view of ORM, the Software or Development may at some point directly infringe a intellectual property rights, ORM shall, at its sole option: (i) obtain for Customer the right to use the Software or intellectual property rights free of any liability or accountability; or (ii) modify, adapt or replace the Software or intellectual property rights to make it non-infringing without loss of any features or functionality.
(e) In any event, ORM assumes no responsibility under the Agreement for, and shall have no obligation to indemnify or hold Customer harmless from, or to pay attorneys’ fees or costs for, any claim made by a third party based upon: (i) any method or process in which the Software may be used by Customer that is independent of the Software itself; (ii) any business or financial conclusions or results that Customer derives from using the Software; (iii) any use of the Software other than a current and unaltered (by Customer) version of the Software that was provided to Customer; or (where the claim would not have arisen but for such use) (iv) the combination, operation or use of the Software with non-ORM programs or data not supplied or recommended by ORM if such infringement would have been avoided by the combination, operation or use of the Software with other non-infringing programs or data.
(f) Neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages. The total cumulative liability of each Party for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the fees paid by Customer to ORM hereunder during the twelve (12) month period immediately preceding the event giving rise to the claim. The foregoing limitations shall not apply to ORM’s confidentiality obligations herein or a Party’s intellectual property rights.
(a) If any provision of this Agreement shall be determined to be invalid, illegal or otherwise unenforceable by any court of competent jurisdiction, the validity, legality and enforceability of the other provisions of this Agreement shall not be affected thereby. Except as otherwise provided in this paragraph, any invalid, illegal or unenforceable provision of this Agreement shall be severable, and after any such severance, all other provisions hereof shall remain in full force and effect.
(b) Each Party acknowledges that money damages alone will not adequately compensate the other Party for breach of the covenants and agreements set forth in Section 3 and Section 6 of this Agreement and therefore agrees that in the event of the breach or threatened breach of any such covenant or agreement, in addition to all other remedies available to the Party, at law, in equity or otherwise, the Party who has been harmed shall be entitled to injunctive relief compelling specific performance of, or other compliance with, the terms hereof. The Party who has breached such covenants and agreements shall reimburse the other Party for all reasonable expenses, including attorneys’ and experts’ fees and court costs, incurred by the Party who has been harmed as a result of the other Party’s breach of the terms of this Agreement.
(c) This Agreement, together with any Order Form, represents the entire agreement and supersedes all prior written and oral agreements and understandings between the Parties relating to the subject matter hereof, and may be changed only in a written agreement signed by both parties.
(d) Neither Party may assign this Agreement or any right or duty hereunder. Any such attempted assignment shall be void. Notwithstanding the foregoing, either Party may assign or otherwise transfer its rights and obligations under this Agreement, including, but not limited to an affiliated company, in connection with a merger, consolidation, sale of all or substantially all assets or sale of stock of the Party. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
(e) No failure of either party to enforce any right hereunder shall be deemed a waiver thereof.
(f) The provisions of Sections 2, 3, 5, 7, 10 through 14 shall survive the expiration or termination of the Term for any reason and shall not in any way be modified, altered or otherwise affected by such expiration or termination.
(g) ORM is an independent contractor. Neither ORM, nor any officer, director or employee of ORM shall be entitled to any benefits, coverages or privileges, including, without limitation, social security, unemployment, medical or pension payments, made available to officers or employees of Customer. ORM will be responsible for its own expenses, unless otherwise agreed by the parties in writing.
(h) This Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the State of Delaware without regard for its principles of conflicts of laws.
(i) Section and paragraph and headings are provided for the convenience of reference only and shall not be construed otherwise.
(j) This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall together constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]