PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CLIENT AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between Connect Orange, a Michigan limited liability company (“Company”) and the corporation, LLC, partnership, sole proprietorship, individual, or other entity executing this Agreement (“Client”). This Agreement is effective as of the date Client clicks “Accepted and Agreed To” (the “Effective Date”). Client’s use of the System is governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON CLICKING THE CHECKBOX NEXT TO “I AGREE” AND THEREBY DIGITALLY SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CLIENT’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CLIENT TO THESE TERMS AND CONDITIONS.
The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1 “Client Data” means data in electronic form input or collected through the System by or from Client, including without limitation by other Users.
1.3 “System” means Company’s ConnectOrange.io, ConnectOrange.com, and ConnectOrange.net websites and software as a service and corresponding training materials.
1.4 “User” means any company or individual who uses the System on Client’s behalf or through Client’s account or passwords, whether authorized or not, including without limitation the Client.
2.1 Use of the System. During the Term, Client may access and use the System on a limited basis, as long as: Company does not terminate Client’s access to and use of the System.
3.2 Risk of Exposure. Client recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Client assumes such risks. Company offers no representation, warranty, or guarantee that Client Data will not be exposed or disclosed through errors or the actions of third parties.
3.3 Data Accuracy. Company shall have no responsibility or liability for the accuracy of data uploaded to the System by Client, including without limitation Client Data and any other data uploaded by Users.
3.4 Data Deletion. Company may permanently erase Client Data if Client’s account is delinquent, suspended, or terminated for 30 days or more.
3.5 Excluded Data. Client represents and warrants that Client Data does not and will not include, and Client has not and shall not upload or transmit to Company’s computers or other media, any data (“Excluded Data”) regulated pursuant to regulated pursuant to any federal data security law (the "Excluded Data Laws"). CLIENT RECOGNIZES AND AGREES THAT: (a) COMPANY HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) COMPANY’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
3.6 Aggregate & De-Identified Data. Notwithstanding the provisions above of this Article 3, Company may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data and De-Identified Data in any way, in its sole discretion. (“Aggregate Data” refers to summaries of Client Data, or of data that includes Client Data, that do not include personally identifiable information or the names or addresses of Client and any of its Users. “De-Identified Data” refers to Client Data with the following removed: personally identifiable information and the names and addresses of Client and any of its Users.)
4.1 Acceptable Use. Client shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System, except as specifically authorized by this Agreement; (b) provide System passwords or other log-in information to any third party, except as specifically authorized by this Agreement; (c) share non-public System features or content with any third party, except as specifically authorized by this Agreement; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the System; or (e) engage in web scraping or data scraping on or related to the System, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 4.1, including without limitation by Users, Company may suspend Client’s access to the System without advanced notice, in addition to such other remedies as Company may have. This Agreement does not require that Company take any action against Client or any User or other third party for violating this Section 4.1, or this Agreement, but Company is free to take any such action it sees fit.
4.2 Unauthorized Access. Client shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Client shall notify Company immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
4.3 Compliance with Laws. In its use of the System, Client shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Client Data.
5.1 IP Rights to the System. Company retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Client any intellectual property license or rights in or to the System or any of its components. Client recognizes that the System and its components are protected by copyright and other laws.
5.2 Feedback. Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Client or other Users provide to Company, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting the Client or other User in question. Feedback will not constitute Client’s confidential information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Company’s products or services.)
6.1 From Client. Client represents and warrants that, to the best of its knowledge: (i) the Client will have the full right and authority to enter into, execute, and perform its obligations as required under this Agreement, with no pending or threatened claim or litigation that would have a material adverse impact on its ability so to perform; (ii) Client will accurately identify each User and will not provide any inaccurate information about a User to or through the System; and (iii) Client will be a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
6.2 Warranty Disclaimers. CLIENT ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CLIENT OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CLIENT DATA WILL REMAIN PRIVATE OR SECURE. FURTHERMORE, CLIENT ACKNOWLEDGES THAT THE SYSTEM CAN BE USED IN WAYS THAT VIOLATE POLICIES OR TERMS OF SERVICES OF THIRD PARTY WEBSITES AND COMPANIES, INCLUDING AMAZON.COM AND WALMART.COM, AND CLIENT ACCEPTS FULL RESPONSIBILITY FOR ANY SUCH VIOLATIONS.
7.1 Excluded Damages. IN NO EVENT WILL COMPANY BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
7.2 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 7 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (d) EVEN IF CLIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE; AND (e) TO ANY LIABILITY THAT ARISES FROM OR IS RELATED TO THE BREACH OF A THIRD PARTY’S TERMS OF SERVICE, INCLUDING AMAZON AND WALMART. If applicable law limits the application of the provisions of this Article 7, Company’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Company’s liability limits and other rights set forth in this Article 7 apply likewise to Company’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
8.1 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Company employee or contractor will be an employee of Client.
8.2 Notices. Company may send notices pursuant to this Agreement to Client’s email contact points provided by Client, and such notices will be deemed received 24 hours after they are sent. Client may send notices pursuant to this Agreement to email@example.com, and such notices will be deemed received 72 hours after they are sent. In addition, Client is on notice and agrees that: (a) for claims of copyright infringement, the complaining party may contact firstname.lastname@example.org; and (b) Company will terminate the accounts of subscribers who are repeat copyright infringers.
8.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, pandemics, emergency orders or declarations, or other causes beyond the performing party’s reasonable control.
8.4 Assignment & Successors. Client may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent. Except to the extent forbidden in this Section 8.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
8.5 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
8.6 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
8.7 Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Michigan, including applicable U.S. federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Ingham County, Michigan. This Section 8.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
8.9 Technology Export. Client shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Company or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Client shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
8.10 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.