Based on the offer for SaaS-Services (hereinafter the "Offer") provided by Orca (hereinafter the "Provider" or individually the "Party" and together with the Customer the "Parties"), the customer (hereinafter the “Customer” or individually the "Party" and together with the Provider the "Parties") agrees to be bound, without reservation, to the following SaaS-Service Terms and Conditions (hereinafter “T&C”).
The Offer (including its annexes, if any), these T&C and the annexes mentioned herein are all an integral part of the agreement between the Provider and the Customer (hereinafter the "Agreement").
The Provider operates a platform and application for data storage and management as described on the Provider's website www.withorca.com (hereinafter the "Platform") and in connection therewith provides to the Customer certain Software-as-a-Service services (hereinafter "SaaS-Services") under the terms and conditions specified in these T&C.
As part of its SaaS-Services, the Provider:
- sets up the Platform;
- operates the Platform and provides the SaaS-Services as well as support services;
- grants the Customer access to the Platform to use the Platform and to receive the SaaS-Services as well as the Support Services.
Access to the Platform and to the SaaS-Services and Support Services are subject to the Agreement and to the timely payment of the fees set forth in the Offer (hereinafter the "Fees") by the Customer.
1.2 SaaS-Services and Support Services
During the Term (as defined in Section 8.1) the Provider will provide the SaaS-Services and Support Services to the Customer in accordance with the Agreement.
The Provider may sub-contract the provision of any of the SaaS-Services and Support Services at its own free discretion without requiring the consent of the Customer. The Provider will provide sub-contracted SaaS-Services and Support Services at the same level of service as was provided prior to the sub-contract.
2. Customer Rights and Obligations
Use of Services by Customer
Subject to the Customer's compliance with the Agreement and to the Customer paying the Fees, the Provider grants to the Customer a non-exclusive licence to use the Platform for the purpose of storing and managing the Customer's data (hereinafter the "Permitted Purpose") during the term of the Agreement.
The use of the Platform by the Customer shall be subject to the following licensing terms:
1. the Customer may only use the Platform for the Permitted Purpose; 2. the Customer must not and agrees not to:copy or reproduce the Platform or any part of the Platform other than in accordance with the licence granted;sell, sub-license, resell, rent, lease, loan, supply, distribute, redistribute, publish or re-publish the Platform or any part of the Platform without explicit, prior consent of the Provider;modify, alter, adapt, translate or edit, or create derivative works of, the Platform or any part of the Platform;reverse engineer, decompile, disassemble the Platform or any part of the Platform (except as mandated by applicable law);use the Platform other than in accordance with the Provider's instructions;use the Platform in any way that is unlawful, illegal, fraudulent or harmful or use the Platform in connection with any unlawful, illegal, fraudulent or harmful data, purpose or activity;use the Platform in any way that causes, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform; or circumvent or remove or attempt to circumvent or remove the technological measures applied to the Platform for the purposes of preventing unauthorised use. 3. the Customer must not and agrees not to sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform.
For the avoidance of doubt, the Customer has no right to directly or indirectly via a third party access the source code of the Platform, either during or after the Term.
3. Customer Account and Data
3.1 Customer Account
Access to the Platform will be provided to the Customer by setting up a personal Customer account (hereinafter "Customer Account"). The Customer will be asked to create personal log-in data consisting of a user name and a password (hereinafter "Log-in Data").
The Customer will be issued a recovery code within the Platform and asked to store it in a safe place independent of their password. If the Customer forgets their password, they can use the recovery code to create a new password. Any time a new password is created, the previous recovery code becomes invalid and a new recovery code is generated. If the Customer forgets their recovery code, they can request a new one within the Platform. The old recovery code will become invalid as soon as a new recovery code is generated.
The Customer must keep the Log-in Data confidential and secure at all times. The Customer may grant access to the Customer Account by sharing the Log-in Data with employees or agents. The sharing of the Log-in Data is at Customer's sole risk, responsibility and liability. The Customer agrees to ensure that access to the Platform is strictly restricted to persons authorised to use it and that such authorised use is at all times compliant with the Agreement.
The Customer agrees and acknowledges that there is no password backup or retrieval mechanism for the Platform (other than via the recovery code) and that the Provider does not track or store the Customer's password, nor the recovery code. In case of a loss of the password and recovery code, the Customer can no longer access the Customer Accounts and the Customer Data is inaccessible and unretrievable.
3.2 Customer Data
Between the Provider and the Customer, any documents, information and data stored on the Platform by the Customer (hereinafter "Customer Data") is owned by the Customer.
The Platform is operated as a 'zero-knowledge' storage Platform. Customer Data is encrypted and decrypted locally on the Customer's computer or device. Access to the encryption keys is restricted to the Customer. The Customer acknowledges that the Provider does not have access to the encryption keys and hence no access to the Customer Data. The Customer is solely responsible for accessing and managing the
4. Fees / Payment Conditions
The Customer agrees to pay the Fees as set forth in the Offer using the payment method specified in the Offer.
The Provider may suspend access to the Platform and the provision of the SaaS-Services if any amounts due to be paid by the Customer to the Provider is overdue by more than 30 calendar days. In the case of a suspension of the SaaS-Service, the Customer remains fully obligated to pay the Fees and the Customer is not entitled to claim any refunds or compensation.
Any open credit towards the Customer voids if this Agreement is terminated by the Customer.
5. Intellectual Property
All intellectual property rights pertaining to the SaaS-Services and the Platform shall, as between the Parties, be the exclusive property of the Provider. This includes intellectual property rights in any customisations to the Platform.
6. Warranties and Liabilities
6.1 Customer's Warranties
The Customer warrants to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement and that it will use the SaaS-Services and the Platform strictly in compliance with any relevant applicable law and the conditions set forth in the Agreement.
6.2 Provider's Warranties
The Provider warrants that it has the legal right and authority to enter into and perform its obligations under the Agreement and that it will perform its obligations under the Agreement with reasonable skill and care and the SaaS-Services and the Platform shall materially operate in accordance with Provider’s published specifications and documentation.
6.3 Liability / Exclusion of Liability
The Customer herewith agrees to defend, indemnify, and hold the Provider, its suppliers, resellers, partners and their respective affiliates harmless from and against any third-party claims, liabilities, damages, losses and expenses (including attorney's fees and costs) that arise in connection with Customer's use of the Platform and the SaaS-Services (except to the extent covered by a Provider indemnification claim) that:
1. is in violation with these T&C; 2. constitutes a violation of any third party right, including any intellectual property right; 3. is in violation of the law of any relevant jurisdiction.
The Provider herewith agrees to defend, indemnify, and hold the Customer harmless from and against any claims, liabilities, damages, losses and expenses (including attorney's fees and costs) that arise in connection with (a) the Provider's wilful or grossly negligent violation of the Agreement, (b) a claim that the SaaS-Services and the Platform or Customer’s use of the SaaS-Services and the Platform as authorized herein constitutes a violation of any third party right, including any intellectual property right.
Any liability of the Provider for damages caused by simple or light negligence or for damages caused by the Provider's auxiliaries such as sub-contractors and agents is excluded. Provider will use its best efforts to remedy any actions which caused such simple or light negligence. Further, neither Party will be liable for:
1. any loss of profits, income, revenue, use, production or anticipated savings; 2. for any loss of business, contracts or commercial opportunities; 3. for any loss of or damage to goodwill or reputation; 4. in respect of any loss or corruption of any data; 5. in respect of any special, indirect or consequential loss or damage; and 6. for any losses arising out of a Force Majeure Event, a Force Majeure Event meaning an event, or a series of related events, that is outside the reasonable control of the Party affected (including failures of or problems with the Internet or a part of the Internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
Provider is obligated to use its best efforts to mitigate the effects of the Force Majeure Event and resume SaaS-Services as soon as possible.
7. Data protection
8. Term and Termination
The Agreement is entered into for a fixed term as specified in the Offer (hereinafter the "Initial Term") starting at the payment date. The Agreement automatically renews for further equal terms (hereinafter the "Renewal Term") if neither Party terminates the Agreement with a written notice (by mail or e-mail) at least 30 calendar days before the expiration of the Initial Term or any subsequent Renewal Term. References in these T&C to the "Term" include the Initial Term and any Renewal Term(s).
Either Party may terminate the Agreement immediately by giving written notice to the other Party if the other Party:
1. commits any breach of any term of the Agreement, and the breach is not remediable; or the breach is remediable, but the other Party fails to remedy the breach within 30 calendar days of receipt of a written notice requiring it to do so; or persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach). 2. the other Party is dissolved;ceases to conduct all (or substantially all) of its business;is or becomes unable to pay its debts as they fall due;is or becomes insolvent or is declared insolvent; or an order is made for the winding up of the other Party, or the other Party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other Party under the Agreement).
8.3 Effects of Termination
Upon termination of the Agreement, the Customer will no longer have the right to access the Platform and use the SaaS-Services and Support Service. Upon termination, the Customer Account will be deactivated.
The Customer is solely responsible for moving and removing the Customer Data from the Platform before the deactivation of the Customer Account. Upon deactivation of the Customer Account, the Provider reserves the right to delete any Customer Data from the Platform. Upon request from the Customer, the Provider shall extract and provide to the Customer the Customer Data.
9.1 No Waiver
No breach of any provision of the Agreement will be waived except with the express written consent of the Party not in breach.
If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant clause will be deemed to be deleted). The Parties commit themselves to substitute the ineffective provision with one that most closely reflects the economic intention of the ineffective provision. The same applies to unintentional gaps in the contract.
9.3 No Agency
Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the Parties.
9.4 Written Form
This Agreement (including this provision) may not be varied except by a written document signed by or on behalf of each of the Parties.
The Customer may not assign any or all of its contractual rights and/or obligation without the prior written consent of the Provider.
The Customer hereby agrees that the Provider may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate. The Customer has the right to terminate the Agreement with 90-days notice if the Provider assigns any or all of its contractual rights and/or obligations under the Agreement to any successor or a substantial part of the business of the Provider from time to time.
9.6 Choice of Law and Forum
This Agreement will be governed by and construed in accordance with the substantive laws of Switzerland excluding its conflict of law provisions and excluding the United Nations Convention on the International Sale of Goods (CISG).
The exclusive place of jurisdiction is Zürich (City), Switzerland. The Parties may jointly choose as alternative place of jurisdiction any competent court of justice worldwide.