1. These OrbusInfinity SaaS terms (“SaaS Terms”) are a legally binding contract between the entity accepting these SaaS Terms (“You” or “Client”) and Orbus Software (“We,” “Us” or “Supplier”), for and on behalf of itself and its affiliates, each individually a “Party” and collectively, the “Parties.”

By placing a Purchase Order (“Order”) executed by You and Us (or via an authorized channel partner) specifying the Services to be provided by Us to You, that incorporates these SaaS Terms, You acknowledge that you have reviewed these SaaS Terms and agree to be legally bound by them, as of the Effective Date on the Order (“Effective Date.”)

2.1 Right of use for SaaS. Supplier grants Client a non-exclusive, non-transferable, non-sublicensable right to access and use the Supplier’s OrbusInfinity cloud-based products and services (“SaaS”) as identified in the Order for the term set out in the Order (“Term”), subject to these SaaS Terms. “Software” means Supplier's proprietary and/or licensed software applications that are to be hosted and/or used by Supplier and/or made available by the Supplier for download by the Client, in each case for the purposes of providing the SaaS.

2.2 The SaaS, together with the support services for the SaaS (“Support Services”) and the consultancy services for the SaaS (“Consultancy Services”) will be together referred to as “Services.” We shall, as part of the Services, provide You with our standard support services in accordance with the documentation in effect at the time that the Services are provided, the current version of which support terms are as set out at the link provided to You in the Order Form (or at such other location as We notify You from time to time) (“Support Terms”), as may be amended in our sole and absolute discretion from time to time.

3. PERMITTED USE

a) reverse engineer, decompile, disassemble, re-engineer or otherwise attempt to discover the source code of any part of the Software, except as may be expressly permitted by applicable law;

b) reproduce, copy, modify, adapt, create derivative works from or transmit the Services or Documentation or any component thereof, or transfer, assign, sell, rent, lease, license, distribute, commercially exploit, or otherwise make the Services or Documentation available to any third party, except as may be expressly permitted by applicable law;

c) attempt to access all or any part of the Services and/or Software in order to build a competing product or service;

d) attempt to obtain, or assist third parties in obtaining, unauthorised access to the Services or Software;

e) remove or deface any notice of confidentiality or trademark that may be displayed via the Services or Documentation;

f) introduce to or transmit via the Services and/or Software any virus, worm, Trojan horse or other malware or destructive element;

g) use, transfer or reassign the Software, Services, Documentation or any technical information relating to the Software, Services or Documentation to, or make the same accessible from, any country, territory or person in any manner or for any purpose that risks violation of legislation and regulatory requirements which apply to the export, re-export, transfer, release or shipment of goods, technology or software (“Export Law”) (including the EU Dual Use Regulation (EC) No 428/2009; the UK Export Control Order 2008; the U.S. International Traffic in Arms Regulations; and the U.S. Export Administration Regulations); and/or

h) use, transfer, reassign or make available the Software, Services, Documentation or any technical information relating to the Software, Services or Documentation to any person, country or territory in any manner or for any purpose that risks violation of legislation and regulatory requirements related to economic or financial sanctions (“Sanctions Law”) (including those implemented, administered and enforced by the UK Office of Financial Sanctions Implementation, the US Office of Foreign Assets Control, the United Nations and the Council of the European Union).

3.2 We reserve the right to suspend immediately the Client's (or any Authorized User's) access to or use of the Services (or part thereof), or to vary any Authorized Users permissions whenever We deem such action necessary, in our discretion, including if: (a) We become aware that You and/or any Authorized User is in violation of the Documentation or the provisions of clause 3.1; (b) We believe Your use of the Services could adversely impact other customers' use of the Services or the underlying infrastructure, network or servers used to provide the Services; or (c) there is suspected unauthorized third party access to the SaaS.

4.1 We shall, as part of the Services, provide You with our technical requirements document, the current version of which is set out here or at such other location as We notify you and which may be amended in our sole and absolute discretion from time to time. You acknowledge that compliance with these technical requirements is necessary for the timely deployment of the SaaS and for the full utilization of the SaaS.

4.2 If you cannot comply with the technical requirements, We may make available to you other products and solutions, which may require additional services and fees. The terms of use for other solutions (“End User License Agreement” or “EULA”) can be found here. You acknowledge that by purchasing and using an Orbus product, You are agreeing to the terms of use in these SaaS Terms or the EULA, whichever applicable. In the case of conflicting terms, these SaaS Terms will apply.

4.3 Where the Services involve an integration at your request or part of the offering selected by You, it may contain links to third party websites and Your access to and/or use of any such website is at Your own risk. We do not take responsibility, approve or endorse any third-party website, including its content and services. We will not be liable for any information or services provided by any third party.

4.4 You acknowledge that certain features and functions of the Services may (at Your sole cost, as applicable): (i) require an additional subscription; (ii) be limited to specific levels of subscription as set out in the applicable Order; (iii) require the installation of third party software; or (iv) require You to have a license to third party software not provided by Supplier. You also acknowledge that the failure to install the latest versions or compatible versions of such software or third party software may result in a loss of functionality. Accordingly, You shall procure Authorized Users access to, and install the latest versions or compatible versions of, such software and/or third party software.  

4.5 You further acknowledge that certain functions and features may be dependent on access to third party software through APIs made generally available by a third party supplier. We shall have no liability for any failure to provide the Services if Your access to the APIs or third party software is amended, withdrawn or its continued access is otherwise limited.

4.6 Third Party Materials. The SaaS includes materials owned by third parties (“Third Party Materials”). In addition to the terms herein, any use of the Third Party Materials contained is governed by, and subject to, the terms and conditions of the applicable licence terms located here (“Third Party Licences”), which Client agrees to bound by and shall comply with. In the case of any conflict between the applicable Third Party Licence and these SaaS Terms, the Third Party Licence shall have precedence to the extent of such conflict. Third Party Materials are licensed on an “AS IS” basis, without indemnification, maintenance and support, or warranty of any kind, expressed or implied. Any breach of a Third Party License by You or any Authorised User shall also be a breach of this Agreement.

5.1 All payments are due and payable within thirty (30) days of date of invoice and are non-refundable, non-cancelable, and irrevocable except as expressly stated in this Agreement. All payments shall be made without recoupment or set-off. Client will pay all taxes and duties including, but not limited to, sales, use, rental, receipt, personal property, and other taxes (but excluding taxes based upon Supplier's income), which may be levied or assessed in connection with this Agreement. Any payment that is not paid in accordance with the terms of this Agreement will accrue interest at the rate of four per cent (4%) per annum above the base rate of Barclays Bank PLC for the time being in force, accruing daily from the date due (both before and after judgment), and Client will pay all costs of collection, including reasonable legal fees and expenses. 

6.1 SaaS Warranty. Supplier warrants that the SaaS (i) when properly used, will perform substantially in accordance with the Documentation and (ii) is subject to standard virus scanning methods designed to detect and remove malware. Supplier does not warrant that the SaaS will be uninterrupted or error free. Supplier does not and cannot control or warrant the flow of data to or from Supplier’s or Client’s network and other portions of the internet. 

6.2 THE SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF ACCURACY, SATISFACTORY QUALITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

If during the Warranty Period, We receive written notice from You of the non-conformity of the Consultancy Services with the warranty in clause 6.3, We shall, at our sole option and expense, promptly re-perform any Consultancy Services that fail to meet this limited warranty. You shall provide all information reasonably necessary, and reasonable assistance to Us, to enable Us to comply with our obligations under clause 6.3 and to furnish a remedy for any breach of this warranty. Unless otherwise set out in these SaaS Terms, this clause sets out the Client’s sole and exclusive remedy and Supplier’s sole liability for warranty claims related to the Consultancy Services.

“Intellectual Property Rights” means (a) patents, utility models, petty patents, rights in trade secrets and other confidential or undisclosed information (such as inventions (whether patentable or not or know-how), registered designs, rights in copyright (including moral rights), database rights, design rights, rights in copyright (including moral rights), database rights, design rights, and trademarks: (b) all registrations or applications to register any of the rights referred to in (a); and (c) all rights in the nature of any of the rights referred to in (a) including continuations, continuations in part and divisional applications, rights in unfair competition and, without prejudice to anything else in this definition, rights to sue for passing-off and rights having the equivalent or similar effect to, and the right to apply for any of the rights listed in this definition, in any country or jurisdiction;

“Background IP” means all Intellectual Property Rights other than in the Foreground IP but including with respect to the Supplier any Feedback and any improvements, modifications or enhancements made to the Software at any time, and with respect to the Client includes Client Data;

“Foreground IP” means the Intellectual Property Rights arising out of the performance of the Services and outputs of the SaaS Services under this Agreement, including documents, reports, diagrams, etc, but excluding Background IP and Feedback;

“Feedback” means comments, suggestions, requests, messages or recommendations for improvements to or concerning the functionality. Features or operation of the Services by the Client and/or the Authorized Users;

“Client Data” means all data embodied in any form uploaded to the Software by the Client and/or any Authorized User but excluding Usage Data and Improvements;

“Usage Data” means data generated in connection with access and use of the Services by the Client and the Authorized Users (but which does not contain any Client identifiable information) such as log reports generated as a result of error reporting and reports of how many times certain features have been used in order to inform improvements in the Services.

7.2 All Intellectual Property Rights in the Background IP will be the sole and absolute property of, and will vest and remain vested in, the Party owning it as of the Effective Date, or where applicable, the third party from whom the right to use the Background IP has derived. 

7.3 All Intellectual Property Rights in the Foreground IP shall vest in and be owned absolutely by the Client.

7.4 We will collect, maintain, and process Usage Data through the Software. This information is used to provide insights on usage and the performance of the SaaS for Us to improve the Services and/or develop updates. There is no collection or processing of Client Data or Personal Data (as defined in the Data Processing Addendum) as part of this data collection.

8.1 Subject to clause 8.2 and subject always to the indemnified Party’s proper observance of its obligations under these SaaS Terms, each Party shall indemnify the other Party against all damages awarded against the indemnified Party in relation to any third party claim that the indemnified Party’s use of the SaaS (with respect to the Client) and material provided to the Supplier (with respect to the Supplier) constitutes infringement of any Intellectual Property Rights owned by a third party, on the condition that the indemnified Party shall:

a) promptly notify the indemnifying Party in writing of any infringement or allegation of infringement; 

b) allow the indemnifying Party to conduct all negotiations and proceedings, defences and give the indemnifying Party all reasonable assistance as requested; and

c) make no admission relating to the infringement or alleged infringement.

8.2 If at any time an allegation of infringement of Intellectual Property Rights is made against Us regarding the SaaS, We may, at our own expense and sole option:

a) procure for You the right to continue using the relevant Software and Documentation; 

b) replace or modify the Software and/or the Documentation to make them non-infringing without substantially affecting the functionality of such Software; 

c) take such action as We shall reasonably deem appropriate to avoid or settle any such infringement or alleged infringement; or

d) if the remedies in 8.2(a) and 8.2(b) are not reasonably available, We may terminate the Agreement without any additional liability or obligation to pay liquidated damages or other additional costs to You, provided that We promptly refund to you any Fees paid by You in advance in respect of any period that falls after the date of termination.

8.3 If We elect to procure a license in accordance with clause 8.2(a) or to modify the item(s) or to supply substitute item(s) under clause 8.2(b) and such exercise of the said rights has avoided any claim, demand or action for infringement or alleged infringement, or if We have otherwise avoided or settled the claim, demand or action for infringement or alleged infringement in accordance with clause 8.2(c), or if We have refunded the applicable Fees to You in accordance with clause 8.2(d), then We shall have no further liability thereafter in respect of the said claim, demand or action.

8.4 We shall have no liability for any claim of infringement resulting from:

a) any modifications or alterations to the Software not made by Us; 

b) any information, design, specification, instruction, software, data or material not furnished by Us;

c) use of the Software, alone or in combination with any other software, except as permitted in these SaaS terms or as set out in the Documentation;

d) any breach of contract or any negligent, wilful or fraudulent act or omission by the Client, its employees, agents or subcontractors.

8.5 The foregoing provisions of this clause 8 state the entire liability of the Parties with regard to any infringement or alleged infringement of any Intellectual Property Rights arising from the Client's use of the Software and/or Documentation.

9.1 Nothing in these SaaS Terms shall exclude or limit either Party’s liability to the other Party for: (i) death or personal injury caused by that Party’s negligence; (ii) wilful misconduct, fraud or fraudulent misrepresentation; (iii) breach of clause 10 (Confidentiality and Publicity), or breach of clause 12 (Data Protection); (iv) breach of clause 8 (Intellectual Property Indemnity); or (v) any other liability that cannot, as a matter of law, be excluded or limited.

9.2 SUBJECT TO CLAUSE 9.1, NEITHER PARTY SHALL BE LIABLE TO THE OTHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE FOR ANY OF THE FOLLOWING LOSSES OR DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT AND EVEN IF SUCH LOSSES AND/OR DAMAGES WERE FORESEEN, FORESEEABLE OR KNOWN, OR IF EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF THEM IN ADVANCE: (I) LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; (II) ECONOMIC LOSS; (III) LOSS OF ACTUAL OR ANTICIPATED PROFITS; (IV) LOSS OF BUSINESS REVENUE; (V) LOSS OF ACTUAL OR ANTICIPATED SAVINGS; (VI) LOSS OF BUSINESS; (VII) LOSS OF OPPORTUNITY; (VIII) LOSS OF GOODWILL; OR (IX) ANY INDIRECT, INCIDENTAL, SPECIAL,  OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED.

9.3 SUBJECT ALWAYS TO CLAUSES 9.1 AND 9.2 AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED (IN THE AGGREGATE) TO 100% OF THE FEES PAID OR PAYABLE BY THE CLIENT TO THE SUPPLIER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING WRITTEN NOTIFICATION OF THE CLAIM.

9.4 Neither party will be in breach of these SaaS Terms to the extent that non-performance or delay results from the other Party’s breach of these SaaS Terms, or the other Party’s or a third party’s failure or delay in completing activities, providing access or information, or complying with technical requirements reasonably required to perform the Services.

9.5 Each provision of these SaaS Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks proportionately between the parties. This allocation is reflected in the pricing offered by Us to You and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this agreement.

9.6 Some jurisdictions do not allow the exclusion of guarantees, conditions, warranties or terms implied or imposed by any applicable law. Nothing in these SaaS Terms excludes, restricts or modifies any guarantee, warranty, term or condition, right or remedy implied or imposed by any applicable law which cannot lawfully be excluded, restricted or modified.

9.7 Breach of applicable laws on Anti Money Laundering, Anti Corruption, Export Law or Sanctions Law or Client's obligations in clause 3.1 shall be a deemed to be a material breach not capable of remedy. Client shall indemnify, defend and hold harmless Supplier and its respective officers, agents and employees from and against any and all losses, costs, claims, penalties, fines, suits, judgments and other liabilities (including applicable attorney’s fees) arising out of, relating to or resulting from Client’s failure to comply with Anti Money Laundering Law, Anti Corruption Law, Export Law, Sanctions Law or Client's obligations in clauses 3.1. 

10.1 “Confidential Information” means any non-public business information, know-how, trade secrets, and other information, in any form, that is designated as confidential or that a reasonable person should understand to be confidential due to the nature of the information or the circumstances of disclosure, and is disclosed by or on behalf of either party or its affiliates to the other party or its affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, whether before or after the Effective Date. Confidential Information includes, without limitation, Client Data (which is your Confidential Information), and information regarding the Services, our systems and networks, product plans, security information and assessments, audit reports, pricing information, and the terms of any Order (all of which is our Confidential Information).

10.2 All Confidential Information given by one Party to the other, or otherwise obtained or developed by one Party relating to the other, shall be kept secret and confidential by the receiving Party throughout the Term of these SaaS Terms and for the five (5) years following its termination or expiry and shall not be used or disclosed other than for the purposes of the proper performance of these SaaS Terms or with the prior written consent of the other Party.

10.3 Except with respect to Personal Data, the obligations of confidentiality in this clause 10 shall not extend to any matter or information which the receiving party can show:

a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under these SaaS Terms;

b) was independently disclosed to it by a third party entitled to disclose the same; or

c) is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.

11.1 Each Party shall have the right, without prejudice to its other rights or remedies, to terminate these SaaS Terms with immediate effect by written notice to the other if the other:

a) commits a material breach of these SaaS Terms which is incapable of remedy or which, if capable of remedy, has not been remedied within thirty (30) days of receipt of a written notice specifying the material breach and requiring the same to be remedied; or

b) is, becomes or admits that it is unable to pay its debts as they fall due or suspends or threatens to suspend payment of its debts;

c) takes any steps with a view to the appointment of an administrator, administrative receiver or liquidator of the other party or its property;

d) undergoes any event or takes any steps or steps analogous to any event the events or steps set out in clauses 11.1 a) to 11.1 c) (inclusive) occurs in any jurisdiction.

11.2 Except to the extent not permitted by law, We shall have the right, without prejudice to our other rights or remedies, to suspend or terminate at our discretion these SaaS Terms with immediate effect if:

a) You fail to pay any or all of the Fees when they fall due and continue in such failure for more than twenty-one (21) days after receiving written notice that We may exercise our right to terminate these SaaS Terms if payment is not made; or

b) We reasonably believe that it would be unlawful to continue with these SaaS Terms under applicable Laws.

11.3 Upon the expiry or termination of these SaaS Terms:

a) each Party shall (and shall procure that its personnel shall) immediately return all property and Confidential Information belonging to the other Party; and

b) all rights granted to the Client under these SaaS Terms shall immediately terminate, including any rights of access granted.

11.4 The expiration or termination of these SaaS Terms will not affect any accrued rights of either Party, including any right to receive any payments due but unpaid before expiration or termination. 

12.1 Both Parties undertake to comply with the applicable data protection laws as defined in the Data Processing Addendum and shall ensure that its employees, agents and subcontractors shall comply with such data protection laws (as applicable). The Data Processing Addendum is available here. In particular, if the transfer of Personal Data from one Party to the other is required in order to provide the Services under these SaaS Terms, then the Data Processing Addendum shall apply.

13.1 Entire Agreement; Modification; Waiver; Priority; Severability. This Agreement constitutes the entire and exclusive agreement between the Parties and supersedes all prior written and oral agreements and communications related to the subject matter of this Agreement, including those contained in any Client-provided purchase orders. Any modifications to this Agreement must be in writing and signed by the duly authorized representatives of the Parties. Any waiver under this Agreement must be in writing and signed by the Party granting the waiver. A waiver granted under this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other provision of this Agreement. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. In the event of any conflict between any provision of this Agreement and any Order incorporated and made part of this Agreement, such conflict will be resolved by giving precedence to the Order. Any contrary or additional terms and conditions included in any purchase order or similar document (printed or online) related to this Agreement will be invalid and non-binding, even if received, accepted, approved, or signed by a Party. If any provision of this Agreement is held invalid or unenforceable, the provision will be limited to the minimum effect necessary and the remaining provisions of this Agreement will remain binding and enforceable. Orders may be executed in one or more counterparts, with the same effect as if the Parties had signed the same document. The Parties agree to the use of digital signatures.

13.2 Independent Contractors. The Parties are independent contractors and have no power to bind or incur obligations on the other Party’s behalf.

13.3 Force Majeure. Neither Party is liable for failing to perform an obligation under this Agreement if such failure is due to any act or condition beyond that Party’s reasonable control.

13.4 Assignment. You may not assign or transfer your rights or obligations under these SaaS Terms in any way and may not grant sub-licenses without Supplier’s prior written agreement (such agreement not to be unreasonably withheld).

13.5 Third Parties. A person who is not the Supplier or the Client shall have no right to enforce any term of these SaaS Terms.

13.6 Anti-Bribery and Corruption. You shall comply with all applicable laws relating to anti-bribery and anti-corruption including the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act 2010 or any other similar legislation in any other jurisdiction.

13.7 Notices. All notices, demands, or other communications by any Party to the other shall be deemed to have been duly given when: (i) made in writing and delivered in person with signed receipt, or (ii) sent via a nationally recognized, traceable, overnight delivery carrier, to the address of the other Party in the Order, or to such address as the parties may provide to each other in writing from time to time. Notice will be effective upon delivery.

13.8 Dispute Resolution. In the event of a dispute, each Party will appoint a senior management representative to negotiate in good faith to resolve the dispute before commencing formal proceedings. Formal proceedings may not commence until thirty (30) days have passed since the initial request to negotiate the dispute, provided, however, that a Party may file for formal proceedings at any time to avoid the expiration of any limitations period or apply for interim relief. 

13.9 Governing Law and Jurisdiction. Based on the Orbus Software entity with which Client agreed and which is specified on the Order Form, each Party agrees to the applicable governing law below without regard to choice or conflict of law rules. In the event either Party has initiated formal proceedings, each Party agrees to submit to the exclusive jurisdiction of the applicable courts below with respect to any dispute, claim, action, suit or proceeding (including non-contractual disputes or claims) arising out of or in connection with this Agreement, or its subject matter or formation. To the extent not prohibited by law, each of the Parties hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement.