Orbus Software
End User License Agreement
iServer Terms
(End User Licence Agreement)
This End User License Agreement (“EULA”) is a legally binding contract between the entity accepting these terms (“You” or “Client”) and Orbus (as defined in any Purchase Order (“Order”) for and on behalf of itself and its affiliates, "We", "Us" or "Supplier"), each individually a "Party" and collectively, the "Parties."
By placing Order executed by You and Us (or via an Authorized Channel Partner) specifying the product or Services to be provided by Us to You, that incorporates this EULA Terms, You acknowledge that you have reviewed this EULA and agree to be legally bound by it.
1. Definitions and Interpretation
For purposes of this Agreement, the following terms have the following meanings:
Annual Maintenance Fee means the support and maintenance fees, excluding all taxes thereon, paid by Client for the support and maintenance services as set forth in the Order Form or in the maintenance agreement signed at or around the time of this Agreement (as applicable).
Documentation shall mean the documentation that is supplied or made accessible by the Orbus with the Software at any point during the term of this Agreement including but not limited to installation documentation and End User documentation which is hosted online and made available to the Client via the Ecosystem.
Data means any information or material stored within the Software by End Users;
Ecosystem shall mean the collaboration platform on which the Client customer account information, training resources and other supporting Documentation can be found.
Intellectual Property Rights means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
End Users shall mean the Client’s users of the Software including both registered and unregistered users, as set forth in the Order Form.
Licence Fees means the licence fees, excluding all taxes thereon, paid by Client for the licence granted under this Agreement as set forth in the Order Form.
Purchase Order (“Order”) means the order form filled out and submitted by or on behalf of Client, and accepted by Orbus, for Client’s purchase of the licence for the Software granted under this Agreement.
Person means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
Software means the software programs in object code form only for which Client is purchasing a licence, but excluding customisations specifically requested by the Client, as expressly set forth in the Order Form.
Third-Party means any Person other than Client or Orbus.
2. Licence Grant and Scope
Subject to and conditioned upon Client’s compliance with all terms and conditions set forth in this agreement and the Order and in consideration of payment, Orbus hereby grants to Client a perpetual, personal, non-exclusive, non-transferable, non-sublicensable, limited licence during the Term to use, solely by and through its End Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This licence grants Client the right, exercisable solely by and through Client’s End Users, to:
a. install in accordance with the Documentation one (1) copy of the Software on each of the designated computers set forth on the Order Form owned or leased, and controlled by, Client. Unless expressly stated in the Order Form, each such computer shall be for a single End User. In addition to the foregoing, Client has the right to make one copy of the Software solely for archival purposes and one copy of the Software solely for backup purposes, provided that Client shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Client uninstalls and otherwise deletes such inoperable copy(ies). All copies of the Software made by the Client:
i. will be the exclusive property of Orbus;
ii. will be subject to the terms and conditions of this Agreement; and
iii. must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
b. use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Client’s internal business purposes.
c. download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licenced use of the Software in accordance herewith. All copies of the Documentation made by Client:
i. will be the exclusive property of Orbus;
ii. will be subject to the terms and conditions of this Agreement; and
iii. must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
3. Use Restrictions
Client shall not, and shall require its End Users not to, directly or indirectly:
a. except as may be permitted by Section 2 and strictly in compliance with its terms, provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Client, with access to or use of the Software or Documentation;
b. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
c. rent, lease, lend, sell, sublicence, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
d. use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:
i. power generation systems;
ii. aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
iii. safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
iv. military or aerospace applications, weapons systems, or environments;
e. use the Software or Documentation in violation of any law, regulation, or rule;
f. use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Orbus’s commercial disadvantage.
4. Responsibility for Use of Software
Client is responsible and liable for all uses of the Software and Documentation through access thereto provided by Client, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Client is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its End Users or by any other Person to whom Client or an End User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
5. SERVICES
a. Subject to Section 6.6 and in consideration of the Annual Maintenance Fee, the licence granted hereunder entitles Client to the software maintenance (“Maintenance”) and support services (“Services”) following the date set forth on the Order (executed on or around the same date of this Agreement) for one (1) year and thereafter, solely if Client purchases additional Services. Such Services shall be provided on the terms and conditions set forth in the Order Form or the maintenance agreement (as applicable).
b. For the avoidance of doubt, Deployment can be either on-premise in the Client`s server room or data centre or sit in-cloud at the data centre of the Client`s cloud service provider, as agreed between the Orbus and Client and set forth in the Order Form.
c. Upon termination of the software maintenance and support services, the Client will not be entitled to utilise remaining consultancy days (as applicable). The Orbus will be under no obligation to refund any monies paid by the Client for consultancy days not used.
d. Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Orbus makes generally available on payment of the Annual Maintenance Fee to all Clients of the Software then entitled to maintenance and support services. Orbus may develop and provide Updates in its sole discretion, and Client agrees that Orbus has no obligation to develop any Updates at all or for particular issues. Client further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Client acknowledges that Orbus may provide some or all Updates via download from a website designated by Orbus and that Client’s receipt thereof will require an internet connection, which connection is Client’s sole responsibility. Orbus has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Orbus may issue as a separate or new product, and Orbus may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.
e. Orbus reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Client’s registration of the copy of Software for which support is requested. Orbus has no obligation to provide maintenance and support services, including Updates:
i. for any but the most current or immediately preceding version or release of the Software;
ii. for any copy of Software for which all previously issued Updates have not been installed;
iii. if Client is in breach under this Agreement; or
iv. for any Software that has been modified other than by or with the authorization of Orbus, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by Orbus in writing.
6. Collection and Use of Data
a. The Client and Orbus intend that the Client is the data controller and Orbus is the data processor in respect of any Personal Data. In the event that a party considers that its status as a data controller or a data processor has changed, it shall promptly notify the other party and provide details of the grounds upon which such notification is made. The Parties shall then meet, discuss and mutually agree any further actions to be conducted by one or both Parties arising from such notification.
b. Orbus shall keep a record of any processing of the Personal Data carried out in the course of the maintenance and support services and of its compliance with its obligations set out in this Section 7 (“the Records”);
c. The cost of such co-operation and assistance referred to in this section shall be at the Client’s sole cost unless such co-operation and assistance directly relates to Orbus’s breach of its obligations in this Agreement in which case such co-operation and assistance shall be at Orbus’s cost.
d. If Orbus becomes aware of any unauthorised or unlawful processing of any Personal Data or that any Personal Data is lost or destroyed or has become damaged, corrupted or unusable the Orbus shall, without undue delay of becoming aware of any matter described in this Section notify the Client.
e. Where necessary to perform the Services or otherwise give effect to this Agreement, personal data forming part of the Data may be transferred to the Orbus’s Corporate Group or third parties in accordance with the appropriate data protection principles.
7. Intellectual Property Rights
Client acknowledges and agrees that the Software and Documentation are provided under licence, and not sold, to Client. Client does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the licence granted and subject to all terms, conditions, and restrictions under this Agreement. Orbus reserve and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Client in this Agreement. Client shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Client shall promptly notify Orbus if Client becomes aware of any infringement of the Orbus’s Intellectual Property Rights in the Software and fully cooperate with Orbus, at Orbus’s sole expense, in any legal action taken by Orbus to enforce its Intellectual Property Rights.
8. Term and Termination
a. Upon expiration or earlier termination of this Agreement, the licence granted hereunder shall not terminate, and Client shall continue to use all copies of the Software and Documentation that were accessible during the term of this Agreement. Such use shall be in accordance with the provisions of this Agreement, which provisions shall survive any termination of this Agreement. The means by which Client shall have access to Software and Documentation shall be in a manner and form substantially equivalent to the means by which access is provided under this Agreement.
9. Limited Warranties
a. Solely with respect to Software for which Orbus receives a Licence Fee, Orbus warrants that:
i. any media on which the Software is provided will be free of material damage and defects in materials and workmanship under normal use; and
ii. the Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation and this Agreement, will substantially perform in accordance therewith,
iii. the foregoing warranties do not apply, and Orbus strictly disclaims all warranties, with respect to any third-party materials.
b. The warranties set forth in Section 11(a) will not apply and will become null and void if Client breaches any provision of this Agreement, or if Client, any End User, or any other Person provided access to the Software by Client or any End User, whether or not in violation of this Agreement:
i. installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Orbus in writing;
ii. modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or
iii. misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Orbus in writing.
c. If, during the Term of this Agreement, any Software covered by the warranty set forth in this Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 11(b), Orbus will, subject to Client’s promptly notifying Orbus in writing of such failure, at its sole option, either:
i. replace any damaged or defective media on which the Orbus supplied the Software;
ii. amend, supplement or replace any incomplete or inaccurate Documentation; or
iii. repair or replace the Software, provided that Client provides Orbus with all information Orbus requests to resolve the reported failure, including sufficient information to enable the Orbus to recreate such failure.
d. If Orbus repairs or replaces the Software, the warranty will continue to run from the initial date specified on the Order Form, and not from Client’s receipt of the repair or replacement. The remedies set forth in this Section 11(c) are Client’s sole remedies and Orbus’s sole liability under the limited warranty set forth in Section 11(a).
10. Limitation of Liability
To the fullest extent permitted under applicable law:
a. without limiting its generality, any merger, consolidation, or reorganization involving Client (regardless of whether Client is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Orbus’s prior written consent is required. No delegation or other transfer will relieve Client of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13 (h) is void. The Orbus may sub-contract or assign any part of its obligations under this Agreement provided that in respect of any such subcontracting, the Orbus continues to be responsible to the Client for such sub-contracted obligations in accordance with the terms of this Agreement, and in respect of any such assignment, the Orbus gives notice of such assignment in writing to the Client. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.