Last Updated: 24th May 2018
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.orca.xyz (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.
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.
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:
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.
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.
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 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.
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.
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.
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.
The Customer herewith agrees to defend, indemnify, and hold the Provider, its suppliers, resellers, partners and their respective affiliates harmless from and against any 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 that is:
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 the Providers willful or grossly negligent violation of the Agreement.
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. Further, the Provider will not be liable:
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:
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.
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.
Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the Parties.
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 or any successor to all or a substantial part of the business of the Provider from time to time.
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 Provider may chose as alternative place of jurisdiction any competent court of justice worldwide.