Last revised November 09, 2023
GENERAL TERMS & CONDITIONS
These Terms and Conditions (Terms) as published on the website of ORdigiNAL located at www.ordiginal.com and comprise the terms and conditions – as amended from time to time – under which ORdigiNAL will supply Licenses and or Services. You accept these terms on behalf of the entity you represent (Company) (together with its Affiliates) by either: (i) physically or electronically signing a Contract incorporating the Terms; or (ii) placing an order with ORdigiNAL on behalf of Company.
1.DEFINITIONS AND INTEGRATION
In addition to any definitions contained within the body of these Terms, the following definitions apply:
Affiliates means any person, corporation or other entity that now or in the future, directly or indirectly controls, is controlled by or is under common control with a party. For purposes of this definition, control means: (a) with respect to a corporation, the ownership, directly or indirectly, of fifty percent (50%) or more of the voting power to elect directors thereof; and (b) with respect to any other entity, the power to direct the management of such entity.
Contract means a written agreement entered into under these Terms for the supply of Licenses or the provision of Services between ORdigiNAL and Company. A Contract for Services will describe the Services, requirements, and Deliverables. Examples of a Contract include a statement of work, cloud services agreement, or other agreement for managed, cloud, or professional services.
Deliverables means all tangible output of the Services created exclusively for Company by ORdigiNAL and identified in a Contract. Deliverables may include, data, reports, and specifications.
EULA means the applicable end user license agreement, customer product use rights, or other agreement from a Licensor relating to the Licenses to Company (e.g. Microsoft customer agreement for Cloud Services) as well as the then applicable standard terms and conditions for cloud, maintenance and/or support services of software, as amended from time to time.
Intellectual Property Rights means patents, rights to inventions, copyrights, software, trademarks, trade names, service marks, logos, trade secrets, Confidential Information, compilations, diagrams, layouts, mask works, know-how database rights, designs, methods, processes, formulas, rights to use and other proprietary rights and privileges, whether registered or unregistered, together with all improvements, modifications, enhancements, and derivative works to all of the foregoing, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Knowledge Capital means the ideas, concepts, know-how, skills, methodologies, and techniques, whether possessed by ORdigiNAL prior to the commencement of these Terms or developed, modified, improved, or refined by ORdigiNAL during the course of performance of the Services.
Licenses means the permission granted by a Licensor to Company, allowing Company to exercise certain privileges with respect to its software regardless if the software is installed on premises or accessed as cloud services. The Licenses to be supplied or made available under these Terms will be listed in the respective quote from ORdigiNAL, Company purchase order and Order Confirmation(s) and may include temporary usage rights (e.g. subscriptions, cloud services), updates and upgrades, patches or any other changes offered by the Licensor according to the EULA.
Licensor means the legal entity that is the owner of the Intellectual Property Rights vested in the Licenses with the authority to define the End User License Agreement (EULA), Product Terms (PT) or other terms and conditions for the use of the Licenses.
Order Confirmation means ORdigiNAL™s binding acceptance of a Company order containing the details of the Licenses, the price and other terms agreed upon by the parties. For the avoidance of doubt, an automatically generated response by ORdigiNAL which does not state the details of the License(s), the price and other applicable terms or a Company order is not sufficient to constitute a valid Order Confirmation.
Personal Data has the same meaning as personal data under the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
Sanctions Rules mean all applicable laws, regulations, rules and requirements in force from time to time relating to trade, financial or economic sanctions or embargoes including, any sanctions or embargoes enforced by the U.S. government, (including the U.S. Export Administration Regulations and the International Traffic in Arms Regulations), the European Union or any member state of the European Union as well as any applicable import, export or re-export controls and any end-user, end-use, and destination restrictions of the U.S. and other governments that apply to the other partys materials or to the use, transfer, import, export, or re-export of any products licensed or distributed under the Contract.
Services means the services to be provided by ORdigiNAL under these Terms and the applicable Contract.
ORdigiNAL means the ORdigiNAL entity named in an Order Confirmation or Contract. Including, but not limited to, its (future) subsidiaries.
ORdigiNAL means ORdigiNAL Intellectual Property Rights and Knowledge Capital.
Unless otherwise agreed in writing by ORdigiNAL, all Licenses and Services are supplied under these Terms to the exclusion of any other terms and conditions set out or referred to in any document or other communication used by Company prior to or in concluding a Contract. These Terms will apply to each Contract. In the event of a conflict between the Terms and a Contract, the Terms will control unless all of the following apply: (i) the Contract clearly identifies the applicable section of the Terms that is to be modified; and (ii) the Contract clearly states that such provision of the Contract supersedes the conflicting or inconsistent provision in the Terms. Any other attempt to alter or amend these Terms will be deemed void and have no effect. Any modifications to these Terms contained within a Contract are effective as to that Contract only and will not modify the Terms for any other purpose whatsoever. These Terms cannot be modified except in a written document signed by all parties.
2.ORDER AND DELIVERY POLICY
Price quotations and purchase orders are not binding upon either party until ORdigiNAL issues to the Company an Order Confirmation or (if earlier) supplies the Licenses or commences provision of the Services. ORdigiNAL may deliver the Licenses by electronic transmission, electronic access, download or other method provided by the Licensor. If electronic delivery is not possible, ORdigiNAL may deliver Licenses by arranging shipment to Company address. Company orders for Licenses are irrevocable, non-cancellable and cannot be modified once ORdigiNAL places its order with the applicable Licensor. Company may modify or cancel any purchase orders for Licenses at any time prior to ORdigiNAL placing its order for Licenses with the Licensor.
ORdigiNAL will deliver the Licenses to the location identified in the Order Confirmation. ORdigiNAL shall immediately inform Company of any delays in the delivery of the Licenses and shall provide Company with the reason for any anticipated duration of the delay. Delivery Dates are estimates only.
ORdigiNAL Affiliates may enter into a contractual relationship with Company pursuant to these Terms and Company Affiliates may procure Licenses and Services by executing the applicable Contract hereunder. Company and its Affiliates will be jointly and severally liable for all orders for Licenses and Services by Company Affiliate.
4.ACCEPTANCE OF LICENSES; RETURN POLICY
4.1. Company shall inspect the Licenses received within a reasonable time, but not exceeding five (5) Business Days from the date of receipt, to ensure that the Licenses delivered are in the correct quantity and type. In the event of errors in the quantity or type of Licenses, or to the extent allowed by the Licensor return policies, Company may return the Licenses. If Company does not object to the quantity or type of Licenses within five (5) Business Days, then such Licenses will be deemed accepted upon the delivery date. ORdigiNAL will not accept the return of supplied Licenses unless such returns are admissible as per the Licensor return policies. If the Licenses received are not those detailed in the Contract, Company shall inform ORdigiNAL no later than ten (10) Business Days of delivery.
4.2. Company acknowledges that the EULA or PT of certain Licensors have automatic renewal provisions for the Licenses, requiring licensees to provide notice of their intention not to renew a License. If Licenses purchased under a Contract contain an automatic renewal provision, ORdigiNAL shall make commercially reasonable efforts to notify Company of such provision within the Contract. If Company does not wish to renew a License with an automatic renewal provision, then
Company shall: (i) provide notice to ORdigiNAL of its intention not to renew a License thirty (30) days in advance of any period required by the Licensor in the EULA or PT; and (ii) provide notice of its intention not to renew the License to the Licensor as required by the EULA or PT. For example, if a Licensors EULA or PT require a thirty (30) day notice of intent not to renew, then Company shall provide ORdigiNAL with a sixty (60) day notice of intent not to renew. If Company fails to deliver the required notice of intent not to renew, then the License will renew and Company will be responsible for payment.
5.ACCEPTANCE OF DELIVERABLES
ORdigiNAL shall notify Company upon completion of the Services (Notification of Completion). Company shall examine the Services and any corresponding Deliverables and declare or refuse (for material faults only) the acceptance in writing, signed by an authorized representative, within ten (10) Business Days after receipt of the Notification of Completion. If Company does not provide a notice of defect within ten (10) Business Days, then the Services and corresponding Deliverables will be deemed accepted.
6.ACADEMIC, NON-PROFIT AND GOVERNMENT LICENSES
Certain products are only available for purchase by qualified institutions, such as educational institutions (Academic products), qualified non-profit organizations (Non-Profit products) or government units (Government products). By identifying itself as a qualified institution, Company represents that it is familiar with all of the Licensor requirements with respect to such product and that it complies with all of the Licensors requirements for such Academic, Non-Profit or Government product.
ORdigiNAL shall perform the Services with due care and in accordance with the Contracts. ORdigiNAL will not be required to follow any requests or instructions (â€œChange Requestâ€), which change or supplement the substance or scope of the Services described in a Contract. If ORdigiNAL provides the Services described in a Change Request, then Company shall pay for such Services pursuant to these Terms and the applicable Contract. ORdigiNAL does not grant the achievement of a particular work result.
8.1. Company shall: (a) cooperate with ORdigiNAL in all matters relating to the Contract for facilitating the provision of the Services and Licenses ; (b) provide all information ORdigiNAL may request in order to carry out the Services and provide the Licenses in a timely manner and ensure that it is accurate in all material respects; (c) provide timely access to Company Intellectual Property, premises, data and such office accommodation and other facilities as agreed with Company in writing in advance and as necessary for the purpose of providing the Services; and (d) inform ORdigiNAL of health and safety rules and regulations and any other reasonable security requirements at its premises.
8.2. If the performance of ORdigiNAL is prevented or delayed by any act or omission of Company, its agents, sub-contractors or employees, Company shall pay ORdigiNAL all reasonable costs, fees or losses sustained or incurred by ORdigiNAL as a result of such delay.
8.3. Company will be solely responsible for: (i) backing up its data; (ii) ensuring normal operation of its own software; and (iii) the necessary working environment of the software.
8.4. Company shall pay ORdigiNAL invoices as provided in Section 9.
9.PRICING; PAYMENT; TAXES
9.1. Company shall pay ORdigiNAL for the Licenses and the Services along with all agreed charges set forth in the Contract. All prices and availability are subject to change unless agreed upon through a binding Order Confirmation or a Contract signed by both parties.
9.2. If Licenses or third party services consist of consumption-based services, including subscription services that are performed by a party other than ORdigiNAL, then the fee for such a service will be determined by the Licensor or company performing the service. Such fees are not always fixed and may be subject to the usage of the applicable Services and Licenses by Company. Company shall review and accept the billing model and shall pay the fees in accordance with any third party terms. Company is solely responsible for understanding any third party billing model.
9.3. ORdigiNAL will invoice, and Company shall pay the invoiced amounts, plus pertinent taxes, including, all applicable withholding taxes, import taxes, levies, and duties resulting from cross-border transactions (transactions where ORdigiNAL and Company are tax residents of different countries). If Company is required by law to deduct or withhold any taxes from any amount payable on a cross-border transaction, the amount payable hereunder will be increased so that after making all required deductions and withholdings, ORdigiNAL receives an amount equal to the amount it would have received had no such deductions or withholdings been made.
9.4. In the absence of an expressly agreed invoicing schedule, Company shall pay all amounts relating to Services provided by ORdigiNAL at the end of every calendar month in arrears.
9.5. If payment terms are not indicated in a Contract, invoices are automatically due 14 calendar days following the invoice date. All payments made by the Company to ORdigiNAL shall be in the currency of the country where ORdigiNAL is located, which delivers the Licenses or Services, unless otherwise agreed between the Parties.
9.6. If Company does not pay the amounts owed in a timely manner, then Company shall pay interest charges and late payment fees on the outstanding amount, without any written demand or notice of default being necessary. All past due amounts will bear interest at the lesser of 1.5 % per month or the highest rate allowed by law, until the invoice is paid in full.
9.7. Company shall pay all charges incurred by authorized users of its account, by wire transfer or other similar payment mechanisms in effect. To the extent permitted by applicable law, ORdigiNAL may require Company shall reimburse ORdigiNAL for all bank fees relating to checks and sales drafts returned by the Companyâ€™s bank or card issuer. Company shall pay all attorney fees, court costs, collection agency fees, or any other costs incurred by ORdigiNAL in collecting any overdue amount owed.
9.8. Company shall not set off amounts against amounts payable under the Contract.
9.9. In the event of payment default by the Company by more than fourteen (14) calendar days, ORdigiNAL shall be entitled to prohibit the use of the Licenses, Services, and Deliverables with immediate effect (contractual right of prohibition/services suspension).
9.10. ORdigiNAL retains the title on the Licenses, together with all right, title, and interest to the Services and Deliverables until all its future payment claims against the Company at the time of the service or in connection with the delivery items have been settled. With respect to current accounts, the retained ownership shall be regarded as security for the offset balance or current account receivable of Company.
10.WARRANTIES AND DISCLAIMER
10.1. Each party represents that: (i) they are a valid legal entity in good standing under the laws of the jurisdiction in which they are organized; (ii) they have full power and authority to enter into these Terms and any Contract, which will create a binding agreement between the parties; and (iii) the performance by the parties hereunder will not violate any obligation or duty owed to a third party.
10.2. Company acknowledges that ORdigiNAL only delivers Licenses subject to the applicable EULA and PT, which may contain a limited warranty from Licensor. All of Companys rights and remedies with respect to the Licenses, warranty, liability, and indemnity will be governed by the applicable EULA, PT or other documentation. Company acknowledges that it will be required to enter into a EULA, PT or similar end user agreement with the Licensor as a condition precedent to using Licensor software. The EULA/PT or similar agreement will outline all warranties and representations with respect to the Licenses purchased. ORdigiNAL does not make any representations or warranties relating to any Licenses or software.
10.3. All third party services distributed by ORdigiNAL are delivered with the service providers limited warranty. The warranties for third party services that are not performed by ORdigiNAL will be governed by the applicable policies and procedures of the service provider only. ORdigiNAL does not make any express or implied warranties for third party services.
10.4. ORdigiNAL represents and warrants that: (a) it will perform the Services and deliver Licenses using personnel with the abilities, qualifications and experience in accordance with these Terms and the applicable Contract; and (b) it will perform the Services in a professional and workmanlike manner and in accordance with the applicable Contract and all applicable laws, rules, and regulations.
10.5. As far as SLA are agreed in writing, breach of service level agreements (SLA) are deemed to be relevant or considered a material breach of these Terms and the applicable Contract, only if ORdigiNAL has culpably violated the SLA parameters (negligence or deliberate act) and if said violation lasts for a period of at least three (3) months; furthermore ORdigiNAL shall only be held responsible of the non-availability of a Service (e.g. Cloud Services) if it occurs outside of a regular or irregular service/maintenance window (the service windows are described in the SLA document of the respective Service). In case of payment of service credits or penalties for breach of SLA this is the sole and exclusive remedy of the Company, and further obligation and liability of ORdigiNAL relating to the claims identified above are excluded.
10.6. EXCEPT AS STATED IN THIS SECTION 10, OR THE APPLICABLE EULA, SERVICES DESCRIPTIONS, ORDIGINAL HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
11.LIMITATION OF LIABILITY
11.1. ORdigiNAL’s liability for any damages relating to Licenses or Services available through ORdigiNAL are limited to the value of the amounts paid by Company under the Contract for such Licenses or Services over the last twelve calendar months preceding the incident giving rise to the damage. In no event will ORdigiNAL be liable for any incidental, consequential, special, punitive or indirect damages of any kind, including damages resulting from delay, loss of profits, lost business opportunity, loss of content, interruption of business or loss of goodwill, which may arise in connection with or pertaining to these Terms or any Contract, even if such party has been notified of the possibility or likelihood of such damages occurring under any theory of law (including tort or other theory).
11.2. NOTHING IN THESE TERMS OR ANY CONTRACT LIMITS EITHER PARTY LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; (C) WILLFUL MISCONDUCT; (D) INFRINGEMENT OF THE OTHER PARTYS INTELLECTUAL PROPERTY RIGHTS; (E) THE BREACH OF CONFIDENTIALITY OBLIGATIONS; (F) COMPANY PAYMENT OBLIGATIONS; OR WHICH (G) CANNOT BE LIMITED UNDER APPLICABLE LAW.
11.3. Company agrees that any Contract or other document relating to the purchase of Licenses or Services submitted to ORdigiNAL that includes any warranty to Company or that includes language that may create a liability for ORdigiNAL, or conflicts with these Terms, is void and of no effect, unless it complies with the integration requirements stated in Section 1.
11.4. Some jurisdictions do not allow for the limitation or exclusion of warranties or damages, so the limitations on damages may not apply.
12.INTELLECTUAL PROPERTY RIGHTS; IP INDEMNITY
12.1. Except as expressly provided in this Section 12, nothing in these Terms provides Company any right, title or interest in or to any Intellectual Property Rights comprised in the Licenses or the Services, which will at all times remain the property of ORdigiNAL or of the Licensors, as applicable.
12.2. ORdigiNAL shall assist Company with the handling of any associated claims or issues with the Licensor. Company acknowledges that ORdigiNAL is not the publisher or developer of the Licenses and the only warranties or indemnities or license rights are those granted by the Licensor.
12.3. Company represents and warrants that it is buying the Licenses for its own internal use and/or for resale to end-users.
12.4. In the event of conflict between these Terms and the EULA/PT or similar agreement regarding the scope of the Intellectual Property Rights, the warranties and representations conferred to Company, the EULA/PT will prevail.
12.5. Upon full and final payment of the Deliverables, ORdigiNAL shall grant and hereby grants Company a perpetual, worldwide, fully paid up, royalty free license to use the applicable Deliverables, with the exception of term-based licenses with use-rights.
12.6. ORdigiNAL owns all right, title, and interest in all ORdigiNAL IP, whether possessed by ORdigiNAL prior to the commencement of these Terms or developed, improved, or refined by ORdigiNAL during the course of performance of the Services. If ORdigiNAL includes any ORdigiNAL IP or Knowledge Capital within the Deliverables, then ORdigiNAL shall grant Company a limited, perpetual, fully paid up, royalty free, non-exclusive, non-assignable, non-transferrable, revocable (solely for breach of the license), license to use, copy, modify, enhance, and maintain: (i) the ORdigiNAL IP (but excluding Knowledge Capital) for Company internal purposes and solely to the extent necessary to use the Deliverables; and (ii) ORdigiNAL Knowledge Capital as embodied in, or to the extent necessary for its use of the ORdigiNAL IP or the Deliverables for Company internal purposes.
12.7. Third Party Intellectual Property Rights delivered as part of the Service will be made available to Company subject to the terms provided by such third party, which ORdigiNAL will make available to Company upon request.
12.8. Company hereby grants to ORdigiNAL a revocable, non-exclusive, royalty-free license to use Company Intellectual Property Rights to enable ORdigiNAL to perform the Services or to identify new Services for Company. Company reserves all other right, title and interest to its Intellectual Property Rights.
12.9. Company shall not and shall not permit any Affiliates or third party to translate, reverse engineer, decompile, recompile, update, or modify any ORdigiNAL IP, or any Deliverable in a targeted manner in order to discover ORdigiNAL IP. If Company provides any input, comments or suggestions regarding the Services, ORdigiNAL IP, or ORdigiNALâ€™s business or technology plans, including comments or suggestions regarding the possible creation, development, modification, correction, improvement or enhancement of the Services or ORdigiNAL IP (collectively Feedback), then Company shall grant and hereby grants ORdigiNAL a perpetual, non-exclusive, world-wide, royalty free, license to use such Feedback without restriction.
12.10. Aggregated Data and Analytics Data. Notwithstanding any contrary provisions in any Contract, ORdigiNAL may compile and retain Aggregated Data collected from or submitted through the Services and Analytics Data it creates during the performance of the Services, for purposes of operating, maintaining, analyzing, and improving its Services, ORdigiNAL IP, and Knowledge Capital, as well as research and development of new services, ORdigiNAL IP, and Knowledge Capital. Aggregated Data means information and data collected from or submitted, confirmed, or provided by users in the course of accessing and using the Services. Analytics Data means ORdigiNAL analysis of the usage of its Services, ORdigiNAL IP, and Knowledge Capital. ORdigiNAL will own all right, title, and interest in and to all Aggregated Data and Analytics Data, provided that such Aggregated Data and Analytics Data will be anonymized such that will not identify Company or any user.
12.11. ORdigiNAL Indemnity. ORdigiNAL will indemnify and defend Company from direct damages arising from any third party claim that the Deliverables infringe any patent, copyright, trademark, or trade secret right owned by such third party. In no event will ORdigiNAL have any obligations under this Section 12 or any liability for any claim or action to the extent that the claim is caused by, or results from: (a) Company combination or use of the Deliverables with software, services, or products developed by Company or third parties; (b) modification of the Deliverables by anyone other than ORdigiNAL; (c) Company continued allegedly infringing activity, after being provided modifications that would have avoided the alleged infringement; or (d) Company use of the Deliverables in a manner not in accordance with the applicable Contract. In the event that the Deliverable are the subject of an infringement claim, ORdigiNAL shall, at its option: (i) procure the right for Company to continue using the Deliverables; (ii) make such alteration, modification or adjustment to the Deliverables so that they become non-infringing without incurring a material diminution in function in Company reasonable estimation; or (iii) replace the infringing Deliverables at no cost to Company with non-infringing substitutes provided that the substitutes do not entail a material diminution in function in Companys reasonable estimation. If none of the foregoing is reasonable, in ORdigiNAL reasonable discretion, Company shall return the infringing Deliverables and ORdigiNAL will promptly refund the sum of all payments made by Company hereunder for such Deliverables.
12.12. Company Indemnity. Company will indemnify and defend ORdigiNAL from any damages arising from any third party claim that the Company Assets or Company Intellectual Property Rights, used by ORdigiNAL in connection with the Services, infringe any patent, copyright, trademark, or trade secret right owned by such third party.
12.13. Indemnification Requirements; Sole Remedy. The indemnifying part obligation to indemnify the indemnified party pursuant to this Section 12 is contingent upon the indemnified party: (a) providing the indemnifying party prompt written notice of any claim; (b) tendering the exclusive control of the defense of any claim to the indemnifying party; and (c) reasonably cooperating with the indemnifying party in the defense of the claim, at the indemnifying party expense. This Section 12 sets forth the sole and exclusive remedy of the indemnified party, and the entire obligation and liability of the indemnifying party relating to the claims identified above.
ORdigiNAL will not provide any technical support, training or installation, unless expressly provided in a Contract. If ORdigiNAL provides support services (e.g. by Cloud Service) without any additional use charges, ORdigiNAL reserves the right to limit requests for support to a certain number of requests per contract year and to refer the Company to fee based support services in all other regards.
14.TERM, TERMINATION, & SURVIVAL
14.1. The Contract including these Terms are effective upon execution, submission of the Order Confirmation, or delivery of the Services/Licenses – as the case maybe- and will remain in effect until terminated as provided herein. Unless otherwise agreed in the Contract, which may provide for a longer or shorter term, any Contract for managed Services (as defined is such Contract) will have a term of one (1) year (Initial Term. Except as provided in a Contract, following the Initial Term, a Contract for Managed Services will automatically renew for additional thirty (30) day terms.
14.2. ORdigiNAL may terminate any Contract or modify the Terms hereunder at any time and for any reason by providing thirty (30) days™ prior written notice to the other party. The terms and conditions of these Terms will survive any termination with respect to any Contract, until its expiration.
14.3. Either party may immediately terminate the Terms or any Contract hereunder by providing written notice to the other party if: (a) the other party commits a material breach of any of its obligations under the Terms or the applicable Contract that remains uncured for thirty (30) days following written notice therefor, or in the case of a breach that may not be cured within thirty (30) days, the breaching party does not act to cure the breach within the thirty (30) day period; (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is engaged in any procedures relating to a rescheduling of debt, an arrangement with creditors, a winding up procedure, a moratorium; (c) a party becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (d) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within ten (10) Business Days.