Effective Date: 02/01/24
Welcome to OrbAid’s mobile software application and web software application (“Software”), owned and operated by SupplyAssist, Inc., doing business as OrbAid (“OrbAid,” “us,” “we,” “our”). These Terms of Service, together with the additional documents referred to herein (collectively, “Terms”) set forth legal terms and conditions pursuant to which our Software and service(s) offered therein (“Service”) are made available to you (“you,” “user,” “account holder,”) and also govern any communications or offline interactions you have with OrbAid and our Service.
2. Agreement to Terms
Your use of our Software or Service is conditioned on your acceptance of these Terms. By creating an account, accessing or using this Software in any manner, you agree to be bound by these Terms.
BY CLICKING "CREATE ACCOUNT" DISPLAYED AS PART OF THE ACCOUNT CREATION PROCESS, CREATING AN ACCOUNT, YOUR USE OF THE SERVICE, OR SIGNING AN APPLICABLE SEPARATE LEGAL AGREEMENT REFERENCING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS, AND THOSE ADDITIONAL TERMS, TO THE EXTENT APPLICABLE, INCORPORATED BY REFERENCE IN THESE TERMS, INCLUDING, BUT NOT LIMITED TO:
PLEASE READ THESE TERMS FULLY AND CAREFULLY. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU ARE PROHIBITED FROM USING THE SOFTWARE OR THE SERVICE.
BY AGREEING TO THESE TERMS, YOU EXPRESSLY AGREE TO THE ARBITRATION OF ALL DISPUTES AS FURTHER DESCRIBED IN SECTION 18, BELOW.
3. Changes to the Terms
We reserve the right, at our sole discretion, to amend these Terms at any time. The most recent version of the Terms will be reflected by the “Effective Date” noted at the top of the page. All changes are effective immediately when we post them and apply to all access to and use of the Software thereafter. Your continued use of the Service, after the Effective Date of any posted change constitutes your acceptance of the amended Terms as modified by the posted changes. For this reason, we encourage you to review these Terms frequently. To the extent permitted under applicable law, we reserve the right at any time and from time-to-time to modify or discontinue, temporarily or permanently, the Software or Service (or any part of them) with or without notice.
4. Warranty Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL CONDITIONS, WARRANTIES, REPRESENTATIONS AND OTHER TERMS, WHICH MAY APPLY TO THE SOFTWARE AND SOFTWARE DATA, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES WITH RESPECT TO THE SOFTWARE AND ALL INFORMATION, AND CONTENT.
NO INFORMATION OR ADVICE OBTAINED THROUGH THE SOFTWARE, OR AFFIRMATION BY US, BY WORDS OR ACTIONS, SHALL CONSTITUTE A WARRANTY. WE ALSO MAKE NO PROMISES OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, THAT THE CONTENT INCLUDED ON THE SOFTWARE IS ACCURATE, COMPLETE, UP-TO-DATE, OR RELIABLE, AND IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU FOR LOSSES ARISING OUT OF YOUR RELIANCE ON THE SOFTWARE (INCLUDING ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, PERSONAL INJURY/WRONGFUL DEATH, OR LOSS OF BUSINESS OPPORTUNITY).
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
6. Minors & Our Services
Neither the Software nor our Service is intended for users under the age of 18. We do not knowingly or intentionally gather personal information about visitors who are under the age of 18. If you are under 18, you are not permitted to use our Service, and you should not access the Software or provide any information about yourself including, without limitation, your name, address, email address or any screen name or username you may use, unless you possess legal parental or guardian consent.
7. Account Creation and Management
The Software and Service offers specific functionality that may be subject to regulation under applicable laws, ordinances, rules or regulations (“Applicable Laws”). Before you create an Account, you should ensure your use of the Service complies with Applicable Laws.
You represent and warrant that: (a) you will be the only person accessing the Service through the Account you create, (b) you will keep your Account credentials, including your password, secure, and (c) you will notify OrbAid of any suspected breach of security or unauthorized use of your Account. You are responsible for all actions that are performed with, by or under your Account credentials whether done by you or by others. OrbAid is not liable for any damages that result from unauthorized Account access or use.
You expressly acknowledge and agree that OrbAid is not liable for access to your Account that results from theft or misappropriation of your username and password including any activities that occur using your Account after any improper access event, theft or misappropriation.
Your Account is for your individual use only. You may not authorize others to use your Account, and you may not assign or otherwise transfer your Account to any other individual.
8. Software Access
8.1 Internet Access
When visiting the Software on your mobile, laptop, desktop or other device (your “Device”), you acknowledge and agree that you are responsible for: (a) maintaining Internet access for your Device through a Wi-Fi or LTE data communication network, and (b) any Internet connection and telecommunications fees and charges that you incur.
8.2 Your Device
OrbAid is not responsible for the operation of your Device. You are responsible for ensuring the system functions of your Device are in working order when accessing the Software and using the Service, including, but not limited to screen display operation features of your Device.
8.3 No Guarantee
Your access to the Software and Service may be suspended temporarily and without notice: (a) in the event of system failure, (b) for maintenance or repair, (c) where we reasonably suspect there has been a breach of these Terms, (d) for reasons reasonably beyond our control, or (e) as otherwise explained in these Terms.
OrbAid makes no representation or warranty that the quality of any Services, information or other materials purchased or obtained through the Software or Service will meet your expectations, or that any password protection or other security measures that you may use will prevent unauthorized access to your Account, or that any such Account will not be accessed or misused by any other party.
You understand that information and communications, including e-mail and other electronic communications, may be accessed by unauthorized third parties when communicated over the Internet. You understand and agree that it is your sole responsibility, and not OrbAid’s to obtain and implement appropriate security controls, including for example, third-party software products that support encryption and other security controls (if any) that are compatible with security measures that may be used by us from time to time in connection with the Software and Service.
OrbAid and its suppliers and vendors will attempt to keep the information, Service and resources accessible through the Service timely and accurate, but make no guarantees, and disclaim any implied warranty or representation about the Service's accuracy, relevance, timeliness, completeness, reliability, security or appropriateness for a particular purpose.
OrbAid’s Services may be subject to limitations, delays, and other interruptions or impediments inherent in the use or reliance on the Internet and digital services and communications. OrbAid is not responsible for any delays, delivery or connection failures or other damages or losses resulting from such issues.
Your access and use of the Software and Service including any resources contained on, or otherwise made available by, them, is solely at your own risk.
ORBAID, ITS SUPPLIERS AND VENDORS DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE INFORMATION, CONTENT, SERVICES, MATERIALS, FUNCTIONALITY, AND ANY OTHER RESOURCES AVAILABLE ON OR ACCESSIBLE THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ALL SUCH INFORMATION, CONTENT, SERVICES, MATERIALS, FUNCTIONALITY AND OTHER RESOURCES ARE MADE AVAILABLE "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THESE TERMS AND THE SOFTWARE AND SERVICE WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS.
9. Permitted Use and Restrictions of Software or Service
9.1 License Grant
Subject to the terms and conditions of these Terms of Service, OrbAid hereby grants you a limited, revocable, non-exclusive, non-transferrable, non-sublicensable, non-assignable license to access and use the Software and Service (including updates and upgrades that replace or supplement them in any respect and which are not distributed with a separate license, and any documentation) solely for your individual use on a Device that you own or control.
We reserve all other rights, which are not expressly granted in these Terms.
9.2 License Use Restrictions
You may not access or use the Software or Service in any way that is not expressly permitted by these Terms of Service. You may not: (a) cause, permit or authorize the modification, copy, creation of derivative works, translation, public display, public performance, reverse engineering, decompiling, disassembling or hacking of the Software or Service; (b) sell, assign, rent, lease, or grant rights in the Software or Service, including, without limitation, through sublicense, to any other person or entity; (c) use the Software or Service for any unlawful, prohibited, abnormal or unusual activity as determined by OrbAid in its sole discretion; or (d) use the Software or Service in any way not intended by OrbAid.
9.3 Your Use of the Software or Service
In the event you use the Software or Service to access other third-party application, websites or services, you remain subject to the terms of such application, website or service. As OrbAid does not control the content, privacy policies, or practices of any third-party applications, services or websites, we encourage you to read (and you must comply with) such application, service or website’s terms and policies. OrbAid is not responsible for your use or misuse of any third-party applications, services or websites. OrbAid is not responsible for the content of linked third-party sites, sites framed within the OrbAid Software, third-party sites provided as search results, or third-party advertisements. OrbAid does not make any representations and expressly disclaims any warranty regarding their content or accuracy.
You are solely responsible for the use of your Account, how you use the Software and Service and your interactions with third parties through your use of the Software. We may, but are not obligated to, monitor or review our Software and Service at any time. If we become aware of any possible violations by you of these Terms or Applicable Law, we reserve the right to investigate such violations, and we may, at our sole discretion, immediately terminate your license to use the Software or Service pursuant to Section 17. You understand and agree that OrbAid may, but is not obligated to, review and delete (without notice) any information that OrbAid in its sole discretion determines violates these Terms, violates the rights of another person or entity, or which might be offensive, illegal or threaten the safety of others.
9.5 Use Restrictions
You must not use (or permit a third party to use) the Software or Service:
(a) In any unlawful manner, for any unlawful purpose, or to act fraudulently or maliciously, for example, by hacking into, inserting, or otherwise introducing malicious code, including viruses or harmful data into the Software or any operating system used by the Software or Service;
(b) In a way that could damage, disable, overburden, impair or compromise our systems or security, or interfere with other Software or Service users;
(c) To “frame”, “mirror” or otherwise incorporate any part of this Software or Service into any other website without our prior written authorization;
(d) As part of any time-sharing or third-party processing business or scheme;
(e) To collect, scrape, or harvest any information or data from the Software, Service or our systems or attempt to decipher any transmissions to or from the servers running the Software or Service;
(f) Via use of a robot, spider, or other automated device to monitor or copy the Software or Service, any portion thereof, or any information provided by the Software or Service
(g) To send, knowingly receive, upload, download, use or re-use any material which does not comply with these Terms;
(h) To transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam);
(i) To divert or attempt to divert OrbAid’s customers to another website, software, mobile software application, or service;
(j) To impersonate any person or entity, or falsely state or imply or otherwise misrepresent your affiliation with any person or entity in connection with the Software or Services; or
(k) For any other purpose that is to OrbAid’s or its customers’ or partners’ detriment or commercial disadvantage.
You acknowledge and agree that you are solely responsible for, and OrbAid has no responsibility or liability to you or any other person or entity for any breach by you of these Terms or for the consequences of any such breach. You agree to promptly report to OrbAid any known violation of these Terms by others.
9.6 Information You Provide
You agree not to provide inaccurate, misleading, or false information, including personal information, to OrbAid or to any other user. If information, including personal information, provided by you to OrbAid or another user subsequently becomes inaccurate, misleading, or false, you will promptly update the information. OrbAid is not responsible nor is OrbAid obligated to review any information, including any personal information, provided by you for its accuracy.
10. User Content and Submissions
10.1 User Content Contributions
The Software may contain certain interactive features (the “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Software.
All User Contributions must comply with the Use Restrictions set out in these Terms above.
Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Software, you grant us and our licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material according to your account settings.
You represent and warrant that:
(a) You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our licensees, successors, and assigns.
(b) All of your User Contributions do and will comply with these Terms.
(c) You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not OrbAid, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
(d) OrbAid is not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Software.
OrbAid shall have the right to:
(1) Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
(2) Take any action with respect to any User Contribution that OrbAid deems necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms, including the Use Restrictions above, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for OrbAid.
(3) Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Software.
(4) Terminate or suspend your access to all or part of the Software for any or no reason, including without limitation, any violation of these Terms.
(5) Without limiting the foregoing, OrbAid has the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Software. YOU WAIVE AND HOLD HARMLESS ORBAID FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ORBAID DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER ORBAID OR LAW ENFORCEMENT AUTHORITIES.
However, OrbAid does not undertake to review all material before it is posted on the Software and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, OrbAid assumes no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. OrbAid shall have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
10.2 Submissions of Feedback
You acknowledge and agree that any feedback, comments, or suggestions you provide to us regarding the Software or Service (“Submissions”):
(a) will be considered non-confidential and non-proprietary;
(c) we may have something similar to the Submissions already under consideration or in development; and
(d) you are not entitled to any compensation or reimbursement of any kind from us in connection with the Submissions under any circumstances.
11. Intellectual Property
The “OrbAid” name and logo are trademarks and service marks of OrbAid. You do not have the right to use any of our trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
You acknowledge that all intellectual property rights to OrbAid, the Software, Service and OrbAid’s trademarks and copyrights, whether registered or unregistered, including but not limited to rights in graphics, logos, “look and feel,” ownership of all intellectual property rights relating, the Software, Service trade dress, structure, organization, code, any Software -, data, text, images, graphics, proprietary algorithms, logos, user interface, and videos displayed through the Software and Service, and all content on the Software and provided by the Service and compilation thereof, anywhere in the world, belong to us or our licensors and are valuable trade secrets and confidential information of OrbAid and/or our licensors, protected by intellectual property laws.
You acknowledge and agree that OrbAid, or its licensors, owns all right, title and interest in and to the Software and Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Software are protected by U.S. and international copyright laws. Further, you acknowledge that the Software and Service may contain information that OrbAid has designated as confidential, and you agree not to disclose such information without OrbAid’s prior written consent.
Nothing posted on the Software grants a license to any OrbAid or our licensor’s trademarks, copyrights, or other intellectual property rights, whether by implication, estoppel or otherwise. Using the Software does not give you ownership of any intellectual property rights to the content you access. You may not use content from the Software unless you obtain permission from OrbAid or its owner (if not OrbAid), or unless you are otherwise permitted by law. You should assume that everything you see or read on the Software or Service is proprietary information protected by copyright or trademark unless otherwise noted and may not be used except with the written permission of OrbAid or where indicated, our licensors.
You are authorized to use OrbAid content only as expressly authorized at the point of interacting with such materials. Nothing in these Terms transfers ownership of such rights. When accessing the Software or using the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Software and Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property.
All rights not expressly granted to you are reserved by OrbAid.
12. Compliance with Laws
You may use the Software and Service only for lawful purposes. The Software and Service is subject to, and you agree that you will, at all times, comply with, all applicable local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to the use of the Software and Service.
You agree that you shall indemnify and hold harmless OrbAid including its governing bodies and any enterprise operating committee members, individually and collectively, and its officers, employees and agents, individually and collectively, from all liabilities, damages, costs, fines and expenses, including reasonable attorneys’ fees, arising from a breach of this Section.
13. Third-Party Sites
The Software may contain links to third-party websites and materials made available by third parties, including our third-party licensors, (collectively, “Third-Party Site”). You acknowledge that OrbAid has no control over, nor are we responsible for these Third-Party Sites or locations, and any Intellectual Property Rights therein, their contents, accuracy, validity, timeliness, completeness, reliability, integrity, legality, usefulness, safety, actions, and/or availability. Certain Third-Party Sites are intended for educational and scientific research purposes only and you expressly acknowledge and agree that use of such Third-Party Site is at your sole risk.
There is no warranty on the accuracy of the data provided by the Third-Party Site, and reliance on the data provided by the Third-Party Site shall be at your sole risk.
Certain Third-Party Sites may, among other things, be inaccurate, misleading or deceptive. We do not assume any liability for your use of any of the foregoing, which use you acknowledge and agree shall be at your own risk. Nothing in this Agreement will be deemed to be a representation or warranty by us with respect to any Third-Party Sites.
We have no obligation to monitor Third-Party Sites, and we may block or disable access to any Third-Party Sites (in whole or part) through the Software at any time. In addition, the availability of any Third-Party Sites through the Software does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Sites, nor does such availability create any legal relationship between you and any such provider.
Your use of the Third-Party Site or locations will be governed by their terms and conditions and privacy policies (if any) (“Third-Party Terms”). It is your responsibility to read and comply with Third-Party Terms.
To the fullest extent permitted under applicable law, you agree to indemnify and hold us and our affiliates, and their respective business partners, licensees, licensors, officers, directors, employees and agents and their respective successors and assigns (the “Indemnified Parties”) harmless from and against any and all claims, demands, losses, causes of action, debt, judgments, awards, damages, liabilities, costs, fees, and expenses (including without limitation reasonable attorneys' fees and costs), to the extent that such action is based on, arises out of, or is in connection with:
(a) Your use of (or inability to use) the Software or Service, or activities in connection with the Software or Service (including all Submissions, User Contributions, or any other content submitted or made available by you through the Software);
(b) Your breach or violation or alleged violation of any of these Terms;
(c) your violation of the rights of any third-party; or
(d) any other activities of yours accomplished using the Software or Service
We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. In such event, you shall provide the Indemnified Parties with such cooperation as is reasonably requested by the Indemnified Parties.
15. Limitation of Liability
IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR DEVICE, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SOFTWARE, OR YOUR INABILITY TO ACCESS OR USE THE SOFTWARE) ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SOFTWARE, SERVICES, OR THESE TERMS, ARISING AND WHETHER FRAMED IN CONTRACT, TORT, OR STRICT LIABILITY, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF ORBAID, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Your sole remedy for dissatisfaction with the Software or Service including, without limitation, content on the Software, is to stop using the Software and Service. Such limitation shall also apply with respect to any information or advice received through or advertised in connection with the Software and Service or any links on the Software.
In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, then the Indemnified Parties’ liability arising in connection with the Software or Service, or under these Terms whether in contract, tort (including without limitation negligence, strict liability and other actions in contract or tort) or otherwise, shall not exceed, under any circumstances, one hundred dollars ($100). These limitations of liability shall apply even if a limited remedy fails of its essential purpose. You agree that any claim or cause of action arising under these Terms, in relation to our Software, Service, or the performance or non-performance of the Software or Service must be brought within one year after such claim or cause of action arises or be forever barred. The limitation of liability herein applies to all liabilities in the aggregate, including, without limitation, those resulting from your use or your inability to use the Software or Service, or from any Third-Party Software, including from any virus that may be transmitted in connection therewith, or any other matter arising from or relating to the Software or Service.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, ORBAID LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON ORBAID’S CHOICE OF LAW PROVISION SET FORTH BELOW.
We reserve the right to change, edit, suspend, delete and/or cancel any part of the Software or Service, or may terminate these Terms, and/or your permission to use the Software or Service immediately, without prior notice or liability, if (a) you commit any breach of these Terms or we reasonably suspect a breach is imminent; (b) we discontinue the Software or Service; (c) we are prevented from providing the Software or Service for any reason; (d) if required by law; or (e) due to an event beyond our control.
We also have the right, but not the obligation, to monitor the Software to determine compliance with these Terms and any other operating rules we have established and to satisfy any law, regulation or authorized government request. We have the right in our sole discretion to edit, refuse to post or remove any material submitted to or posted on the Software. We reserve the right to restrict, suspend, or terminate your account if you misuse the Software or if you violate these Terms.
On termination of these Terms for any reason, (a) all rights granted to you under these Terms will cease immediately; (b) you must immediately cease all activities authorized by these Terms (including your use of the Software and Service); and (c) you acknowledge that we may restrict your access to the Software and Service.
Any provision of these Terms which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms, will survive the termination or expiration of these Terms and continue in full force and effect thereafter.
17. Communication with OrbAid
If you wish to contact us in writing, or if any condition in these Terms require you to give us notice in writing, you can send this to us by email using the contact details at the bottom of these Terms. If we have to contact you or give you notice in writing, we may do so by email or using any other contact details you provide to us.
18. Dispute Resolution
BY AGREEING TO THESE TERMS, YOU EXPRESSLY AGREE TO THE ARBITRATION OF ALL DISPUTES (AS DEFINED BELOW) AS FURTHER DESCRIBED IN THIS PARAGRAPH. These Terms are subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
18.1 Governing Law; Jurisdiction
These Terms are governed in all respects by the laws of Delaware, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
You and OrbAid hereby submit and consent, except as otherwise provided below, to the exclusive jurisdiction of any state or federal court located within the County of Washtenaw, in the State of Michigan, and irrevocably agree that all actions or proceedings between You and OrbAid shall be brought, maintained and litigated exclusively in such courts, and each of You and OrbAid waives any objection which it may have based on improper venue or forum non conveniens to the conduct of any such action or proceeding in such court. Notwithstanding the foregoing, OrbAid shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
18.2 Binding Arbitration
18.3 Arbitration Procedures
You and OrbAid agree that, except as provided in Section 18.6. below, all Disputes, (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 18 (Dispute Resolution) and the JAMS Rules, the terms in this Section will control and prevail. The arbitrator or arbitral panel may not consolidate more than one person’s Claims and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the foregoing arbitration provisions will remain in force.
Except as otherwise set forth in Section 18.6. below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and OrbAid will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator.
Except as otherwise provided in these Terms (a) you and OrbAid may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator, and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
The arbitration will take place in the County of Washtenaw in the State of Michigan unless the parties agree to video, phone or internet connection appearances.
You and OrbAid agree that any arbitration shall be limited to the Claim between OrbAid and you, individually.
YOU AND ORBAID AGREE THAT:
(A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES;
(B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND
(C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
18.6. Exceptions to Arbitration
You and OrbAid agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Excluded Dispute, (b) any Claim related to, or arising from, allegations of theft, piracy, or unauthorized use, and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
18.7 Arbitration Fees
If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
You and OrbAid agree that if any portion of this Section is found illegal or unenforceable (except any portion of Section 18.6.) that portion shall be severed, and the remainder of the Section shall be given full force and effect. If Section 18.6. is found to be illegal or unenforceable then neither you nor OrbAid will elect to arbitrate any Claim falling within that portion of Section 18.6 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Washtenaw, Michigan, and you and OrbAid agree to submit to the personal jurisdiction of that court.
19. Other Important Terms
19.1 Notice for California Residents Pursuant to CA Civil Code Section 1789.3
Under California Civil Code Section 1789.3, California users of an electronic commercial service receive the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at 916-445-1254 or 800-952-5210.
The rights granted to you under these Terms may not be assigned without OrbAid’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of these Terms shall be given full force and effect.
19.4 Attorneys’ Fees
The prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in any legal action relating to these Terms.
19.5 No Waiver
Our failure to enforce any provision of these Terms shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by OrbAid of any provision, condition or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
19.6 Equitable Remedies
You acknowledge and agree that OrbAid would be irreparably damaged if the terms and conditions of these Terms were not specifically enforced, and therefore you agree that OrbAid shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of these Terms, in addition to such other remedies as OrbAid may otherwise have available to us under applicable laws.
19.7 Entire Agreement
These Terms, including the documents and additional terms incorporated by referenced in these Terms, constitutes the entire agreement between you and OrbAid with respect to the Software and Service and supersedes any and all prior agreements between you and OrbAid relating to the Software or Service.
OrbAid may transfer our rights and obligations under these Terms to another organization, but this will not affect your rights or our obligations under these Terms.
19.9 Nature of Agreement
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship or other relationship between the parties or any of their affiliates is intended or created by these Terms. These Terms does not create any right that may be enforced by a third party and neither party shall have the right, power, or authority under these Terms to create any duty or obligation on behalf of the other party.
20. Contact Us
If you have questions or comments regarding these Terms, please contact us at firstname.lastname@example.org