ORDEMA MASTER SERVICES AGREEMENT
This Ordema Master Services Agreement, along with any applicable Additional Terms, governs your access to and use of any subscription-based product, application, solution and/or service made available to you, supported, operated and/or provided by Orderly d.o.o., Na Trati 17, Lesce, 4248 Lesce, Slovenia on and/or through the Ordema website accessible at www.ordema.net.
BY ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THIS MASTER SERVICES AGREEMENT. IF YOU DO NOT AGREE TO THIS MASTER SERVICES AGREEMENT, YOU MUST CEASE USING OUR SERVICES IMMEDIATELY.
1. DEFINITIONS
“Account Administrator” means an Authorized User assigned and authorized by Customer as its agent to manage Customer’s Account.
“Additional Terms” means any terms and conditions regulating the use of the Services or relationship between the Partis in relation to the use of the Services, including but not limited to Data Protection Addendum, Service Provider Addendum, Privacy Policy and Cookie Policy.
“Affiliate(s)” means any entity which directly or indirectly controls, is controlled by, or is under common control with a Party to this MSA, where purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized User” means any individual, whether employee, representative, agent or contractor of Customer, who is authorized and registered by Customer to use the Services and who has been allocated and identified by a unique email address and username (“Authorized User Account”). If the Authorized User is not an employee or representative of Customer, the Authorized User may access and use the Services solely as required to perform the business purpose of its relationship with Customer. The Authorized User must be 18 years of age or older to access and use the Services.
“Confidential Information” means (i) where Customer is the Disclosing Party (as defined in Appendix 1 of this MSA) and Ordema the Receiving Party (as defined in Appendix 1 of this MSA), Customer Data, (ii) where Ordema is the Disclosing Party and Customer the Receiving Party, the Services and Ordema Content, and (iii) where either of the Parties is Disclosing Party, any information, material, content or data of a Party or its Affiliates that is disclosed in writing, orally or in any other way to the other Party and is designated as confidential or proprietary at the time of disclosure to the Receiving Party or that due to the nature of the information the recipient of the information, material or data would clearly understand it to be confidential information of the Disclosing Party. Confidential Information does not include information that the Recipient Party can demonstrate (i) was in the Recipient Party’s possession prior to its being furnished to the Recipient Party under the terms of this MSA, provided the source of that information was not known by the Recipient Party to be bound by a confidentiality agreement with or other continual, legal or fiduciary obligation of confidentiality to the Disclosing Party, (ii) is now, or hereafter becomes, through no act or failure to act on the part of the Recipient Party, generally known to the public, (iii) is rightfully obtained by the Recipient Party from a third party, without breach of any obligation to the Disclosing Party, (iv) is independently developed by the Recipient Party without use of or reference to the Confidential Information, and (iv) Recipient Party rightfully obtains from a third party who has the right to transfer or disclose it.
“Customer” or “You” or “Your” means the natural person or legal entity purchasing the subscription and/ or accessing and using the Services and identified on the Order Form, billing statement and/or account record as a customer.
“Customer Data” means any information, document, material or content that Customer or its Authorized Users submit, upload, produce or collect through the Services. Customer Data does not include Ordema Content.
“Customer Personal Data” means Personal Data contained in Customer Data.
“Effective Date” means
“MSA” or “Master Services Agreement” means agreement between Customer and Ordema governing Customer’s use of and access to the Services accessible at www.orderma.net.
“Ordema” means Orderly d.o.o., Na Trati 17, Lesce, 4248 Lesce, Slovenia.
“Ordema Content” means Ordema’s names, logos, trade names, service marks and/or any other proprietary content, material or document provided to Customer by or on behalf of Ordema during the provision of the Services excluding any Customer data and excluding any computer program, software code or source code developed, operated, maintained and/or provided by Ordema for the purpose of or in relation to the provision of the Services.
“Order Form” means the order form provided by Ordema through the online subscription process, in a form of the confirmation of a subscription to the Services, or in any other way whatsoever that sets forth the applicable fees and Services selected by Customer.
“Party” means either Ordema or Customer, where both Ordema and Customer are collectively referred to as “Parties”.
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data or otherwise supplied to Ordema by Customer.
“Services” means any subscription-based product, application, solution and/or service made available to Customer, supported, operated and/or provided by Ordema on and/or through the Website and obtained by Customer pursuant to this MSA.
“Support Services” means any consulting, configuration, administration or similar ancillary service made available to Customer or operated and/or provided by Ordema on and/or through the Website and obtained by Customer pursuant to this MSA
“Subscription Fee” means all fees due to Ordema in consideration for the performance of the Services as set forth in the Order Form.
“Subscription Term” means the initial term of Customer’s subscription to the Services as set forth in the Order Form or, if Customer has renewed its subscription, the subsequent renewal subscription term as set forth in the Order Form.
“Third-Party Claim” means any claim, action, suit, proceeding, or demand made by third-party against either Party.
“Third-Party Services” means the non-embedded products and services which are provided or supported by third party service providers and which interoperate with and/or are used in connection with the Services.
“Website” means website accessible at www.ordema.net and any of its subsites.
2. Use of Services.
2.1. Provision of Services. During the Subscription Term, Ordema shall provide Customer with access to Services, and license and right to use the Services in accordance with the terms set out herein. The Services shall be used by Customer solely for Customer’s internal business purpose. Customer may access and use the Services through Authorized User(s) where Customer is responsible to ensure any access and use of the Services by the Authorized User(s) is subject to and in compliance with the terms of this MSA and where Customer remains liable for its Authorized User(s) access and use of the Services at all times in accordance with this MSA.
2.2. Purchasing a Subscription. To access and use the Services, Customer must first create an account. Customer agrees that all information provided for the purposes of creating and maintaining Customer’s account are accurate and complete. During the account creation process, Customer must choose its preferred subscription option. Subscription options may vary based on the length of Subscription Term, scope of Services offered and/or number of Authorized Users. By creating an account and/or accessing the Services, the Customer acknowledges and accepts the terms of this MSA and any applicable Additional Term(s) which form part of this MSA. Natural person creating an account on behalf of Customer, if Customer is a legal entity, shall have the legal capacity to enter into an agreement on behalf of Customer.
2.3. No Legal Advice or Service. Customer understands and acknowledges that a law firm or an attorney and that the Services do not constitute or present services performed by an attorney. The information and content made available in the Services is not legal advice and may not be complete, correct or up to date. Customer should not act on the basis of any information or content included in the Services without seeking appropriate legal advice from counsel.
2.4. Acceptable use. Customer shall use the Services in good faith as authorized under and within the restrictions set out by this MSA and other Additional Terms, including but not limited to the Order Form. Customer shall not and shall not permit the Authorized Users to: (i) reverse engineer, disassemble, reverse compile, modify, copy or otherwise attempt to derive the source code or other trade secrets from the Services, except to the extent expressly permitted by applicable law; (ii) license, sub-license, sell, lease, transfer, distribute assign, host, sublicense and/or otherwise commercially exploit the Services, in whole or in part, (iii) use the Services in a way that violates or infringes upon security, integrity, privacy and other rights of a third party, including but not limited to intellectual property rights and rights related to protection of personal data and its integrity, (iv) use the Services in a way that disrupts, damages, disables, overburdens, impairs or interferes with the integrity, operation, or performance of the Services and/or interferes with any other party’s use of the Services, (v) use the Services to create, use, send, store, or run viruses or other computer malware or program, (vi) access the Services in any other way than through the Services’ interface, (vii) access and use the Services for purposes of developing or operating products or services in direct competition with the Services or for any other benchmarking or competitive purposes.
2.5. Acceptable Customer Content. Customer shall not submit, upload or produce any content that, in whole or in part,: (i) is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, (ii) infringes or misappropriates the intellectual property or proprietary rights of third persons, (iii) encourages, instructs or facilitates others to engage in illegal activity or encourages, promotes, or facilitates hate speech, violence, discrimination based on race, color, sexual orientation, or any other personal qualification, (iv) is deceptive, false, misleading or fraudulent, (v) contains vulgar, obscene, indecent or unlawful material, (vi) is in violation of any applicable local, state, national or international law or/and legislation, including but not limited to the Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (2016) OJ L 119, p. 1–88, the Children’s Online Privacy Protection Act of 1998, 15 U.S.C. 6501–6505, the CAN-SPAM Act of 2003, 15 U.S.C. 7701–7713, California Consumer Privacy Act of 2018, Cal. Legis. Serv. Ch. 55, An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying out Commercial Activities, and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, SC 2010, c 23, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 and the Brazilian General Data Protection Law No. 13.709 of 14 August 2018.
2.6. Free Trial. Customer may register for free trial of the Services. If Customer registers for a free trial, Ordema shall provide Customer with access to Services, and license and right to use the Services in accordance with Section 2.1. of this MSA on a trial basis and free of charge until the end of the trial period as specified on the Order Form. After the end of the free trial period, the Customer shall continue to access and use the Services in accordance with the terms set herein and the Customer Data entered and supplied and configurations made by or for Customer during the free trial period shall be remain at the Customers disposal in their entirety, if Customer purchases a subscription to the applicable Services before the end of the free trial. If Customer does not purchase a subscription to applicable Services before the end of the free trial, all of Customer Data uploaded or submitted in the Services and all configurations made by or for Customer during the free trial may be permanently deleted at the end of the free trial period and could not be recovered. FREE TRIAL IS PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KINDAND, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY.
3. Right to Use.
3.1. Right to Use the Services. Ordema grants to Customer a non-exclusive, limited, non-transferrable, non-sublicensable and worldwide right and license to, during the Subscription Term, access and use the Services as expressly permitted in this MSA through Authorized Users.
3.2. Authorized Users’ Use of the Services. Customer is licensed and has the right to access and use the Services through Authorized Users designated and authorized by the Customer to access and use the Services on behalf of Customer. An Authorized User shall be allocated and identified by a unique email address and username. Authorized User Account shall be used by Authorized User only and shall not be accessed, shared, or used by two or more persons.
3.3. Right to Use the Ordema Content. Ordema owns all right, title and interest, including but not limited to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights, in and to any and all Ordema Content and any improvements, design contributions, derivative works, knowledge or processes related hereto and/or provided hereunder. Ordema hereby grants Customer a non-exclusive, limited, non-transferable, non-sublicensable, perpetual and worldwide right and license to access, copy, reproduce and download Ordema Content for internal use and in accordance with the terms of this MSA. Unless otherwise provided, all deliverables provided by or for Ordema in the performance of the Services, excluding Customer Data and Customer’s Confidential Information, are owned by Ordema and constitute part of the Ordema Content under this MSA.
3.4. Right to Use Customer Data. Customer retains all right, title and interest in and to the Customer Data, including but not limited to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights. Customer hereby grants to Ordema a non-exclusive, transferable, sublicensable, limited, worldwide, fully paid and royalty-free license and right to, during the Subscription Term, access, copy, reproduce, distribute, store, transmit, modify, make derivative works from, publicly display and otherwise use the Customer Data to provide and improve the Services and the Support Services, to verify Customer’s compliance with the restrictions set forth in Section 2.4. and Section 2.5. of this MSA and as otherwise set forth in this MSA. Ordema will not make use of any right to use Customer Data granted herein except as strictly necessary to provide the Services and/or the Support Services.
4. Fees and Taxes.
4.1. Subscription Fees. Customer shall pay the Subscription Fee in advance for the Services to be performed during the Subscription Term. Subscription Fees shall be denominated in the currency set out in the Order Form. Upon execution by the Parties, the Order Form and/or an invoice is non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this MSA or in the Order Form. Customer shall notify Ordema of any errors or inaccuracies in the invoice issued in accordance with Section 11.2. of this MSA within seven (7) days of the invoice date.
4.2. Payment. If Customer chose to pay the Subscription Fee by credit card, Customer hereby authorizes Ordema to charge Customer’s credit card or bank account for the amount of the Subscription Fees payable. If Customer and Ordema mutually agree that Customer shall pay the Service Fee against an invoice, payment will be due within thirty (30) days from the date of the invoice unless otherwise specified in the Order Form, where in case of the subscription renewal, Ordema shall issue the invoice in a timely manner and at least thirty (30) days before the end of the then-current Subscription Term.
4.3. Adjustments. Subscription Fees remain fixed during the Subscription Term. Upon renewal of the subscription, Ordema may adjust the fees in accordance with then-current price list or in accordance with the individual agreement between the Parties. If the Subscription Fee for the following Subscription Term is to increase, Ordema shall notify Customer of the increase at least thirty (30) days in advance of Customer’s renewal date and the increased Subscription Fee for the following Subscription Term will apply at the start of the following Subscription Term.
4.4. Taxes. The Subscription Fees and any other payment due to Ordema are exclusive of all taxes, duties, levies and/or similar transactional taxes imposed by any jurisdiction. Customer shall be responsible for remittance and/or payment of all such taxes, levies, or duties and such taxes levies or duties shall not be deducted from the Subscription fee or any other payment due to Ordema except as required by applicable law. If any taxes, levies or duties are to be deducted from the Subscription Fees or any other payments made to Ordema, the amount payable shall be increased as necessary so that after making all required deductions and/or withholdings, Ordema receives an amount equal to the amount it would have received had no such deductions or withholdings requirement existed. If, in connection with any Subscription Fee or other payments made by Customer to Ordema or in connection with the performance of this MSA, Ordema becomes liable for any taxes, levies or duties and has no standing amounts owing Customer with which it may offset and discharge its tax, levies or duties obligation, Customer shall pay to Ordema the amount needed to discharge the its tax obligation and shall indemnify Ordema against any penalties that may incur if Ordema does not satisfy such obligations as a result of Customer failing to pay Ordema the amount of such tax, levies or duties obligation.
4.5. Payment Information. Customer shall supply Ordema with complete and up to date Customer’s contact information, billing information and credit card information, if applicable, and shall ensure the information stated are kept up to date. Changes to Customer’s contact information, billing information and credit card information may be made by Account Administrator by accessing https://app.ordema.net area within Customer’s Ordema account.
5. Third-Party Services. The Services may in whole or in part be linked with, connected to or may interoperate with the Third-Party Services. Ordema disclaims any and all representations or warranties as to the quality, functionality and unhindered access of Third-Party Services and disclaims any and all representations and warranties that Third-Party Services are accurate, current, or comply with applicable laws, rules or regulations. Such Third-Party Services are provided pursuant to the terms or agreement provided by the third-party to the Customer and applicable between third-party and Customer. ORDEMA DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO THIRD-PARTY SERVICES.
6. Security and Confidentiality.
6.1. Security. Ordema hereby undertakes to use commercially reasonable efforts to implement, maintain and apply security measures and technologies prescribed by the industry standards. Furthermore, Ordema shall implement, apply and maintain appropriate technical and organizational measures as commercially reasonable to ensure security, integrity, and confidentiality of Customer Data and prevent unauthorized access, dissemination, acquisition or use of Customer Data.
6.2. Unauthorized Access. Customer is responsible to hold Customer’s and its Authorized Users’ account details, passwords and other account credentials in confidence and will not be disclosed to any third party. Customer shall immediately notify Ordema of any unauthorized use of account credentials or the Services it becomes aware of.
6.3. Confidentiality. Each Party shall ensure confidentiality, integrity and security of Confidential Information received from the other Party in accordance with the non-disclosure agreement attached to this MSA as Attachment 1.
7. Personal Data.
7.1. General. Each Party shall comply with any applicable data privacy and protection laws, regulations or conventions applicable to Customer Data and Customer’s use of the Services.
7.2. Customer Personal Data. Ordema shall implement and maintain appropriate technical and organizational measures to ensure integrity, security and confidentiality of Customer Personal Data and to prevent unauthorized access to and use of Customer Personal Data.
7.3. Additional Data Protection Terms. If Customer is subject to provisions of EU General Data Protection Regulation (EU Regulation 2016/679) or Brazilian General Data Protection Law No. 13.709, Customer consents to Data Protection Addendum which is hereby incorporated into and made part of this MSA. If Customer is subject to obligations set forth by California Consumer Privacy Act of 2018, Customer consents to Service Provider Addendum which is hereby incorporated into and made part of this MSA.
7.4. Aggregate Data. Customer agrees to Ordema’s collection, analysis and use of quantitative data in aggregate and deidentified form derived from Customer’s use of the Services for its internal business purposes, including analysis, benchmarking, improvement of the Services, and marketing.
7.5. Usage Data. Ordema may collect and process Personal Data about Customer, Customer’s Authorized Users, and any other party accessing and using the Services during their access to and use of the Services and the Website in accordance with Ordema’s Privacy Policy.
8. Warranties and Representations, Disclaimer, Limitation of Liability.
8.1. Mutual Warranties. Each Party warrants and represents to the other Party that: (i) it has full legal power and authority to enter into this MSA and made the terms hereof binding and enforceable upon such Party, (ii) it has no outstanding agreement or obligation that is in conflict with any of the provisions of this MSA or that would preclude such Party from complying with the provisions of this MSA, (iii) in fulfilling its obligations and rights set for the hereunder, it shall act in accordance with all applicable laws, rules and regulations.
8.2. Customer Warranties. Customer warrants and represents to Ordema that (i) any information submitted by Customer to Ordema is complete, truthful and accurate and that Customer will maintain the accuracy of that information, (ii) it owns all copyrights, trademark rights, patent rights, database rights, and other intellectual property rights in Customer Data, or has secured all necessary intellectual property rights, permissions and/or licenses from its respective owners, as to grant Ordema the rights granted in Section 3.4. of this MSA and to use Customer Data uploaded, submitted or transmitted to the Services only within the constraints of the so obtained intellectual property rights, permissions and/or licenses, (iii) it has obtained all other necessary rights, releases and permissions, including consents and permissions required by applicable data protection and publicity laws, to submit all Customer Data to the Services and to grant the rights granted to Ordema in in Section 3.4. of this MSA (iv) Customer Data and its submission and use as authorized herein will not violate (1) any applicable laws, rules or legislation, (2) any third-party intellectual property, privacy, publicity or other rights, and/or (3) any confidentiality obigations Customer may be subject to, and (v) it is responsible for the conduct of its Authorized Users and their compliance with the terms of this MSA.
8.3. Ordema Warranties. Ordema warrants and represents to the Customer that (i) it will provide the Services using in a professional manner and use commercially reasonable efforts to ensure the Services are provided to Customer in accordance with the accepted industry standards and that (ii) it will use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Services.
8.4. Disclaimers. EXCEPT FOR THE OBLIGATIONS ARISING UNDER SECTION 7 OF THIS MSA AND ANY EXPRESS REPRESENTATIONS MADE IN ORDER FOR OR OTHER SERVICE SPECIFIC TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON “AS IS” AND “AS AVAILABILE” BASIS AND ORDEMA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY. CUSTOMER HEREBY UNDERSTANDS THAT THE FUNCTIONING OF THE SERVICES NECESSARILY INVOLVES TRANSMISSION OF CUSTOMER DATA OVER NETWORKS OPERATED, MAINTAINED AND CONTROLED BY THIRD PARTIES, AND ACCEPTS THAT ORDEMA SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY CUSTOMER DATA LOST, ALTERED, INTERCEPTED OR ACCESSED WITHOUT AUTHORIZATION ACROSS SUCH NETWORKS. IF ANY STATUTORY WARRANTIES OR REPRESENTATIONS APPLY TO THE PERFORMANCE OF THIS MSA, THE DURATION OF SUCH STATUTORILY REQUIRED WARRANTIES AND REPRESENTATIONS SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
8.5. Exclusion of Indirect Damages. TO THE EXTENT PERMITTED BY LAW, SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOSS OF PROFITS, SALES, DATA, BUSINESS OPPORTUNITIES OR LOSS OF USE OR CORRUPTION OF SOFTWARE ARISING OUT OF OR RELATED TO THIS MSA, EVEN IF SUCH DAMAGE WAS OR OUGHT TO BE FORSEEN BY THE PARTY.
8.6. Excluded Claims. Either Party shall be liable to the other Party for any loss or damages arising out or in connection to (i) the either Parties’ obligations arising under Section 9 of this MSA and/or (ii) death or bodily injury arising from either Party’s gross negligence or willful misconduct. Furthermore, Customer shall, in addition, be liable to Ordema for any loss or damages arising out or in connection to (i) Customer’s obligation to pay and Ordema’s right to collect any payments due under Section 4 of this MSA and/or (ii) Customer’s negligent or intentional use of Ordema Content contrary to Section 3.3. of this MSA.
8.7. Liability Cap. EXCEPT FOR THE EXCLUDED CLAIMS AS SET FORTH IN SECTION 8.6. OF THIS MSA AND NOTWITHSTANDING THE OTHER TERMS OF THIS MSA, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN RELATION TO THIS MSA OR THE SERVICES PROVIDED HEREUNDER SHALL, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NOT EXCEED THE GREATER OF (I) $100.00 OR (II) THE AMOUNTS PAID BY CUSTOMER TO ORDEMA IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
9. Indemnification.
9.1. By Customer. Customer will indemnify, defend and hold harmless Ordema and its officers, directors, employees, agents, affiliates and representatives from and against any and all third-party claims, actions, suits, proceedings, and demands arising from or related to (i) Customer’s access and use of the Services in contrary to the provisions of this MSA, (ii) any alleged breach by Customer of its obligations under Section 2.4. (“Acceptable Use”), Section 2.5. (“Acceptable Customer Content”), Section 4.4. (“Taxes”) and Section 6.3. (“Confidentiality”), (iii) nature and content of Customer Data and (iv) Customer’s use of Third-Party Services. Customer will further indemnify Ordema for all reasonable attorney’s fees and out-of-pocket expenses incurred in connection with the defense of the Third-Party Claim, for all damages and costs finally awarded against Customer in connection with or as a result of the Third-Party Claim, and for any amounts paid by Customer to such third-party under a settlement or a court order with respect to the Third-Party Claim.
9.2. By Ordema. Ordema will indemnify, defend and hold harmless Customer and its officers, directors, employees, agents, and representatives from and against any and all third-party claims, actions, suits, proceedings, and demands arising from or related to (i) any alleged infringement or misappropriation of a third-party’s intellectual property rights by Customer’s use of the Services in accordance with the MSA, and (ii) any alleged breach by Ordema of security safeguards related to the provision, operation or maintenance of the Services and as specified herein, including Section 6.1 (“Security”) or individually agreed to between the Parties that results in the breach of Ordema’s confidentiality obligations under Section 6.3 of this MSA. Ordema will further indemnify Customer for all reasonable attorney’s fees and out-of-pocket expenses incurred in connection with the defense of the Third-Party Claim, for all damages and costs finally awarded against Ordema in connection with or as a result of the Third-Party Claim, and for any amounts paid by Ordema to such third-party under a settlement or a court order with respect to the Third-Party Claim.
9.3. Procedure. Indemnified Party shall provide indemnifying Party with a prompt written notice of any Third-Party Claim against indemnified Party and shall allow indemnifying Party the right to assume the exclusive control over the defense and settlement of the Third-Party Claim, and shall cooperate with any reasonable requests assisting indemnifying Party’s defense and settlement of such matter. Indemnified Party’s failure to provide prompt notice shall not limit the indemnification obligations of Indemnifying party except to the extent the indemnifying Party is prejudiced by the delay.
10. Term and Termination.
10.1. Term and Renewal. This MSA remains effective as of the Effective Day and until the earlier of (a) expiration of initial Subscription Term, if Subscription Term is not renewed after expiration of initial Subscription Term or, if Customer has renewed its subscription, expiration of the last consecutive renewal Subscription Term, (b) early termination in accordance with Section 10.2 or Section 10.3. of this MSA. Unless otherwise specified in the Order Form, the subscription to the Services shall automatically renew for the shorter of the preceding Subscription Term or one (1) year. For the avoidance of doubt, termination of this MSA under Section 10.2. or 10.3. shall terminate all subscriptions and all Order Forms.
10.2. Early Termination for Cause. Either party may terminate this MSA for cause: (i) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding related to its insolvency, receivership or liquidation, cassation of business, or an assignment for the benefit of creditors under any jurisdiction and such proceeding is not dismissed within sixty (60) days thereafter, (ii) upon giving the other Party thirty (30) days’ written notice, if the other party materially breaches the terms of his MSA and such breach is not cured within the given thirty (30) days’ notice period. In the event this MSA is terminated early for cause by Customer, Ordema shall refund Customer for any prepaid Subscription Fees covering the remainder of the then-current Subscription Term after the effective date of termination. Ordema may, in addition to the above, terminate this MSA immediately and without prior notice if: (i) Customer accesses and uses the Services contrary to the Section 2.4. and Section 2.5. of this MSA, and/or (ii) Ordema is prohibited under applicable law or regulations from providing the Customer with the Services. In the event this MSA is terminated early for cause by Ordema, Ordema shall not provide any refunds of prepaid or unused Subscription Fees, and any unpaid outstanding Subscription Fees, if any, shall become immediately due and payable.
10.3. Early Termination for Convenience. Each Party may terminate this MSA without cause upon giving the other Party thirty (30) days prior written notice. In the event this MSA is terminated early for convenience by Customer, Ordema shall not provide any refunds of prepaid or unused Subscription Fees, and any unpaid outstanding Subscription Fees, if any, shall become immediately due and payable. Either Party may give the other Party notice of non-renewal at least thirty (30) days before the end of the existing Subscription Term to preclude the subscription to the Services from automatically renewing as set for the in Section 10.1. of this MSA.
10.4. Effects of Termination. Upon expiration or termination of this MSA for any reason: (i) Customer shall immediately cease all use of the Services and Ordema’s obligation to provide the Services shall immediately terminate, (ii) Customer access to Customer Data within the Services shall be immediately discontinued and Ordema may delete all of Customer Data unless prohibited under applicable laws and regulations, (iii) all licenses and rights of use granted herein by Ordema to Customer in connection to the Services and Ordema’s Content shall immediately terminate, (iv) Customer shall pay to Ordema any unpaid outstanding Subscription Fees, if any, which shall become due and payable immediately upon expiration or termination of this MSA, if this MSA is terminated early for cause by Ordema or for convenience by Customer, (v) the Parties’ rights and obligations under Section 4.4. (“Taxes”), Section 5 (“Third-Party Services”), Section 6.3. (“Confidentiality”), Section 8.4 through 8.7 (“Disclaimers and Limitation of Liability, Section 9 (“Indemnification”), Section 10.4. (“Effects of Termination”) and Section 11 (“General Provisions”) shall survive expiration or termination of this MSA.
11. General Provisions.
11.1. Governing Law and Venue. This MSA is subject to the laws of Slovenia excluding the UN Convention on Contracts for the international Sale of Goods. The place of jurisdiction for disputes arising out of, or in connection with, this MSA, including the validity of this MSA, shall be Ljubljana, Slovenia.
11.2. Notices. Any notice or other communication required or permitted by this MSA to be given to a Party shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by registered or certified mail (return receipt requested), or by electronic notice sent sent by email (transmission confirmation requested), to the Party, in case of Ordema to Na Trati 17, Lesce, 4248 Lesce, Slovenia and in case of Customer to the address provided in the Order Form or, if amended subsequently, in Customer’s contact information section in the Customer’s Ordema account. Ordema may give electronic notice by email to Customer’s email address on record in Customer’s contact information section in the Customer’s Ordema account or through the notifications center of the Services.
11.3. Assignability. This MSA and obligations set forth herein are personal to Customer and Customer shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this MSA without the written consent of Ordema (not to be unreasonably withheld). Any attempt to do so shall be void. Notwithstanding the foregoing, Customer may assign this MSA in its entirety without the consent of Ordema in connection with a merger, acquisition, corporate reorganization, or sale Customer’s assets, in whole or in substantial part, provided that a merger, acquisition, corporate reorganization or sale of assets does not involve a direct competitor of Ordema. Ordema may fully assign and transfer this MSA in whole or part.
11.4. No Relationship. The Parties are independent contractors and nothing in this MSA shall be construed as to create a partnership, joint venture, agency, fiduciary or employment relationship between the Parties.
11.5. Precedence. This MSA consists of the terms of this MSA and its exhibits and attachments, Additional Terms and any other document, terms or agreement specifically referenced in this MSA. In the event of a conflict between or among the MSA documents, the order of precedence shall be (1) the provisions of the Order Form and any other service-specific terms, (2) the provisions of the exhibits and attachments to this MSA, (3) the provisions of the main body of this MSA and (4) the provisions of any other Additional Terms, including but not limited to Privacy Policy, Terms and Conditions of Ordema Website Platform and Cookie Policy.
11.6. Entire Agreement. This MSA constitutes the entire and final agreement between the Parties with respect to the Services provided under this MSA and supersedes and replaces all prior written and oral agreements between the Parties regarding the subject matter hereof. This MSA shall prevail over any terms and conditions that Customer seeks to impose or incorporate, which shall have no force and effect, and/or any terms and conditions implied by trade, practice or customs.
11.7. Severability. If any provision of this MSA is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law.
11.8. No Waiver. No failure on the part either Party to exercise, and no delay by either Party in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy by either Party shall preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
11.9. Amendments to Terms. Ordema may at any time modify, amend or adapt any part of this MSA by posting a revised version at www.ordema.net. The revised MSA shall become effective and binding on Parties after thirty (30) days following the date of the posting of the revised MSA. If modifications, amendments or adaptations made could impact Customer’s substantial rights and obligations, Ordema shall provide Customer with notice of this revision by electronic notice, i.e. email or through the notification center in accordance with Section 11.2 of this MSA. All changes shall be deemed to have been accepted by Customer, unless Customer terminates the MSA prior to the expiry of the thirty (30) day period by providing Ordema with notice of Customer’s objection and termination.
ATTACHMENT 1: Non-Disclosure Agreement
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is incorporated into and made part of the Master Services Agreement accessible at www.ordema.net and governs the terms and conditions of the use of Confidential Information of the respective Party disclosing Confidential Information (the “Disclosing Party”) by the respective Party receiving Confidential Information (the “Receiving Party”).
Unless otherwise defined in this Agreement, capitalized terms shall have the meaning given to them in the MSA.
1. Confidentiality obligations. The Receiving Party shall (i) keep all Confidential Information of the Disclosing Party secret and confidential, using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not make use of any Confidential Information other than for purposes for which the Confidential Information was provided and in any case not for the purposes outside the scope of the MSA, (iii) not provide or disclose any Confidential Information to any third party without prior written consent of the Disclosing Party and (iv) limit access to Confidential Information to those of its and its employees, representatives, contractors and agents who need such access for purposes consistent with the MSA and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein or who have been advised of the confidential nature of such Confidential Information and the terms of this Agreement and are bound by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information.
2. Mandatory Disclosure. If the Receiving Party is or comes under a legal obligation or regulatory request to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall, to the extent legally permissible; (i) provide the Disclosing Party with prompt and sufficient notice of any request that it disclose Confidential Information, allowing the Disclosing Party to object to the request or seek an appropriate protective order, (ii) disclose the minimal amount of Confidential Information required to be disclosed, (iii) cooperate with the Disclosing Party to obtain where reasonably available an order protecting the Confidential Information from public disclosure, if applicable (iv) use all reasonable efforts to obtain confidential treatment of the disclosed Confidential Information. If the Recipient Party becomes aware of an unauthorized disclosure of any of the Confidential Information, the Recipient Party shall immediately notify the Disclosing Party and take all reasonable steps necessary to retrieve the lost or improperly disclosed Confidential Information.
3. No Grant of Rights. The Recipient Party acknowledges and agrees that, as between the Parties, all Confidential Information supplied by the Disclosing Party is proprietary to and exclusively owned by the Disclosing Party. Nothing in this Agreement shall be construed as a grant of any right, title or interest in or to any of the Disclosing Party’s Confidential Information. The Recipient Party’s incorporation of the Disclosing Party’s Confidential Information into its own documents, content or materials shall not render Confidential Information non-confidential.
4. No Representation or Warranties. The Disclosing party shall endeavor to provide the Recipient Party with the proper information for the purposes set forth herein. The Disclosing party, however, makes no representations or warranties that the Confidential information disclosed to the Recipient Party is complete, exact, accurate, fit or sufficient for any particular purpose or for any use of the results based on the Confidential information.
5. Irreparable Harm. The Recipient Party understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause the Disclosing Party irreparable, non-monetary injury, the extent of which may be difficult to ascertain, and, therefore, the Disclosing Party is entitled to (but not required to) seek specific performance and/or injunctive relief in addition to all remedies available to the Disclosing Party at law or in equity.
6. Term. This Agreement shall continue for the duration of the MSA. Each Party’s obligations under this Agreement shall survive termination of this Agreement and the MSA and shall continue in full force and effect with respect to Confidential Information of the other Party for five (5) years from the date of the termination of the MSA. The confidentiality obligations as set forth in the Section 1 of this Agreement shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against the Recipient Party.
5. Return of the Documents. Upon termination of this Agreement, or upon written request of Disclosing Party, the Receiving Party shall return to the Disclosing Party any and all records, notes, and other written, printed or other tangible materials in its possession pertaining to or containing the Confidential Information, except materials which were developed jointly and which required a substantial input of know-how or other resources by the Recipient Party. The returning of materials shall not relieve the Recipient Party from compliance with other terms and conditions of this Agreement.
6. Miscellaneous.
6.1. Additional Terms. This Agreement is incorporated into and made part of the Master Services Agreement accessible at www.ordema.net. In the event of any inconsistencies between the provisions of this Agreement and the provisions of MSA, the provisions of this Agreement shall prevail.
6.2. Assignability. This Agreement is personal to the Parties and the Parties shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of the other Party. Any attempt to do so shall be void.
6.3. Execution of the Agreement. Each Party accepting to be bound by the terms of the MSA hereby acknowledges the terms of this Agreement and agree to follow and be bound by it.
