These Terms of Use & End User Licence Agreement (“Terms”) sets out the conditions of use for you as the Customer ("You" or "Customer") and what we as Orbus will provide (for and on behalf of itself and its Affiliates, "We", "Us" or "Supplier"), each individually a "Party" and collectively, the "Parties".
For clarity, any use of OrbusInfinity by You indicates your acceptance of the Terms.
1. Definitions and Interpretation
1.1 In these Terms:
"Acceptable Use Policy" means the policy set out at https://www.orbussoftware.com/infinity-saas-terms/trial-services-acceptable-use-policy/ (or at such other location as We notify You from time to time);
"Affiliate" means, in relation to an entity, any other person or entity that directly or indirectly Controls, is Controlled by, or is under common Control with such entity;
"Authorized User" means any individual who is Authorized by You in accordance with these Terms to access and use the Services, the number of which is specified in the Trial Software Sheet (as applicable);
"Documentation" means the current version of the operating manuals, user instructions, technical literature and all other related materials in eye-readable form published from time to time by Us relating to the use and application of the Trial 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, semiconductor topography rights, mask work rights, and trade marks: (b) all registrations or applications to register any of the rights referred to in paragraph (a); and (c) all rights in the nature of any of the rights referred to in paragraph (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;
“Trial Services” means the trial/proof of concept version of OrbusInfinity and the support services as set out in these terms and the Trial Software Customer Sheet
2. Nature of the Terms & Conditions
2.1. The Customer intends to engage the Supplier to provide the Trial Services as set out in the Trial Software Customer Sheet, for the purpose of evaluating the suitability of the Trial Services for the Customer’s business needs, Supplier shall provide the Trial Services on a strictly trial-only basis to the Customer subject to these Terms.
3. Trial Services – Limited Use Licence
3.1. Subject to compliance by You with these Terms, We hereby grant to You a non-exclusive, non-transferable, non-sublicensable and revocable right to access and use the Trial Services during the Trial Period for Your own internal business purposes, solely for use by Authorized Users in accordance with these Terms and the Documentation within the Trial Territory specified in the Trial Software Customer Sheet and no other purpose.
3.2. You shall ensure that any Authorized Users comply with the Acceptable Use Policy.
4. Limitations on Use
4.1. You shall not use, transfer or reassign the Software, Trial Services, Documentation or any technical information relating to the Software, Trial 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;
4.2. You shall not use, transfer, reassign or make available the Trial Services, Documentation or any technical information relating to the Trial 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;
4.3. The Trial Services 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 approve or endorse any third-party website or content that is made available to You via any Service.
4.4. You acknowledge that certain features and functions of the Trial Software will not be accessible during the Trial Services.
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 Trial Services if access to the APIs or third-party software is amended, withdrawn or its continued access is otherwise limited.
4.6. We reserve the right to suspend immediately the Customer's (or any Authorized User's) access to or use of the Trial Services (or part thereof), or to vary any Authorized Users permissions whenever We deem such action necessary, in our absolute discretion, including (without limitation) if: (a) We become aware that You and/or any Authorized User are violating the Terms; (b) We believe use of the Trial Services could adversely impact other customers' use of the Trial Services; (c) there is suspected unauthorized third-party access to the Trial Services; or (d) any supplier of Supplier has suspended or terminated Supplier's access to or use of third party services or products required to enable the Customer to access the Trial Services.
5. Trial Period
5.1. The Trial Start Date is the date specified in the Trial Software Customer Sheet or the actual date of the Customer beginning to use the Trial Services, whichever is earlier.
5.2. The Trial Services shall continue for the Trial Period as stated in the Trial Software Customer Sheet and may be extended at our discretion.
6. Intellectual Property
6.1. All Intellectual Property Rights created, developed, subsisting or used in or in connection with the Trial Services (including, without limitation, the documentation, software and any modifications, improvements or enhancements) will be the sole and absolute property of, and will vest and remain vested in the Supplier. All existing Intellectual Property Rights of the Customer used in conjunction of the Trial Services shall remain in the ownership of the Customer.
7. Support Services
7.1. We shall, as part of the Trial Services, provide You with our standard support services in accordance with the Documentation in effect at the time that the Trial Services are provided, the current version of which support terms are as set out at https://bit.ly/3rf5LvQ ("Support Terms"), as may be amended in our sole and absolute discretion from time to time.
8. Data Protection
8.1. Each Party agrees that for the purposes of these Terms, each shall at all times adhere to the applicable terms of the EU General Data Protection Regulation 2016/679, the UK Data Protection Act 2018 and any laws implementing or supplementing each of them, together with the Directive on Privacy and Electronic Communications 2002/58.
9. Confidentiality
9.1. 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 Trial Period and post termination or expiry and shall not be used or disclosed other than for the purposes of the proper performance of these Terms or with the prior written consent of the other Party.
9.2. The following exceptions to the above apply where a) the information 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 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.
10. Warranty
10.1. Supplier warrants that the Trial Services will, when used in accordance with the Supplier’s instructions, perform substantially in accordance with the Trial Software Customer Sheet and the Documentation. The Trial Services are provided on an as-is basis, except as expressly stated in this clause, Supplier disclaims all express or implied warranties, conditions or other terms of any kind concerning the supply or purported supply of, or failure or delay in supplying the services or documentation whether express or implied by statute, common law or otherwise (including those relating to satisfactory quality and fitness for purpose) to the greatest extent permitted by law.
11. Enforceability
11.1. Each of the clauses of these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
12. Applicable law
12.1. (For engagements with Orbus Software UK) These Terms shall be governed by and interpreted in accordance with the laws of England and Wales and the Parties hereby submit to the jurisdiction of the courts of England and Wales.
12.2. (For engagements with Orbus Software Australia) These Terms shall be governed by and interpreted in accordance with the laws of New South Wales and the Parties hereby submit to the jurisdiction of the courts of New South Wales.
12.3. (For engagements with Orbus Software US) These Terms shall be governed by and interpreted in accordance with the laws of New York and the Parties hereby submit to the jurisdiction of the courts of New York.