By using the Orion Labs, Inc. (“Orion”) product accompanying this End User License Agreement (“Product”), or the software that is embedded in the Product (“Software”), you personally, or if on behalf of the entity entering into this agreement, that entity (you and the entity, each “you”) (1) agree to the terms of this End User License Agreement (“EULA”), (2) you are of legal age to form a binding agreement with Orion, and (3) you have the authority to enter into this eula personally or on behalf of the entity you represent, and to bind that entity to this EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE SOFTWARE AND YOU MUST PROMPTLY RETURN THE PRODUCT FOR A REFUND OF THE PRODUCT PURCHASE PRICE BY CONTACTING ORION AT THE ADDRESS BELOW.
AS DESCRIBED BELOW, SECTION 9 DESCRIBES IMPORTANT LIMITATIONS OF THE SOFTWARE AND THE PRODUCT, ESPECIALLY IN CONNECTION WITH LIFE SUPPORT AND EMERGENCY USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
Subject to the terms of this EULA, Orion grants to you, during the term of this EULA, a limited and nonexclusive license (without the right to sublicense) to execute one (1) copy of the Software, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes.
You agree not to, and you will not permit others to: (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Software or make the Software available to any third party; (b) copy or use the Software for any purpose other than as permitted in Section 1; (c) use any portion of the Software on any device or computer other than the Product that you own or control; (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Orion and provide Orion an opportunity to create such changes as are needed for interoperability purposes); (f) use the Software or Product to build a similar or competitive product or service; or (g) publish or disclose to any third party any performance or benchmark tests or analysis.
The Service is only available to individuals aged 13 years or older. We do not knowingly collect, use or disclose personal information from children under 13, or equivalent minimum age in the relevant jurisdiction, without verifiable parental consent. Parents and guardians should also remind any minors that conversing with strangers on the Internet can be dangerous and take appropriate precautions to protect children, including monitoring their use of the Service.
To use the Service, you cannot be a person barred from receiving the Service under the laws of the United States or other applicable jurisdictions, including the country in which you reside or from where you use the Service. By accepting this Agreement, you represent that you understand and agree to the foregoing.
3. Pre-orders and Purchases
By purchasing a pre-order Product that is not yet available for delivery, you make an offer to Orion to purchase the Product subject to these Terms & Conditions. When purchasing pre-order Products, the full payment amount of the order will be charged at the time of purchase. No further charges will be applied once the Products have arrived and shipped.
Expected delivery dates are indicative and most often accurate, however occasionally actions beyond our control results in delays in delivery. For this reason, Orion reserves the right to extend the expected delivery dates. You will be notified via email once your pre-order purchase has been shipped. From there, our standard shipping and returns policy applies.
Orion reserves the right to cancel or refuse any order for any reason at any time prior to shipment, including after an order has been submitted, whether or not the order has been confirmed. We may attempt to contact you if all or a portion of your order is cancelled, or if additional information is needed to complete and accept your order.
4. Automatic Software Updates
Orion may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software and related services (“Updates”). To keep your Software up-to-date, Orion may automatically provide your Product with Updates to the Software without providing any additional notice or receiving any additional consent. You consent to this automatic update. Updates, if any, will be deemed part of the Software. Orion is not obligated to provide any Updates to the Software. If you do not want such Updates, your remedy is to stop using the Product.
The Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Orion and its licensors. Orion and its licensors reserve all rights in and to the Software not expressly granted to you in this EULA. The Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. Title to the Product and the media upon which the Software is provided, and all risk of loss and damage thereto, shall pass to you upon delivery thereof to the common carrier at Orion’s facility or sales distribution point. In the event you provide Orion with any feedback, comments, suggestions, recommendations or ideas with respect to the Software or Products (“Feedback”), you agree that Orion may use, copy, modify, publish, display or distribute such Feedback and its contents for any purpose and in any way without any compensation to you.
6. Open Source
Certain items of software code provided with the Software may be subject to “open source” or “free software” licenses (“Open Source Software”), a list of which is available upon request by email at the email address listed below. The Open Source Software is not subject to the terms and conditions of this EULA, except for Sections 7 and 8. Instead, each item of Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for the Open Source Software, including any rights to copy, modify, or distribute the Open Source Software under the applicable license. If Orion makes any modifications to the Open Source Software and if the applicable license requires that such modifications be made available and Orion does not already publish such modifications via the applicable Open Source Software community, then Orion will make its modifications available on its website.
7. Term and Termination
This EULA and the license granted hereunder are effective on the date you first use the Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated under this section. Orion may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to Orion. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Software, but the terms of Sections 2 through 14 (inclusive) will remain in effect, after any such termination.
8. Warranty Disclaimer
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND PRODUCT ARE PROVIDED “AS-IS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. ORION AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ORION DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SOFTWARE OR PRODUCT. ORION MAKES NO WARRANTY THAT THE SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) Orion BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR SOFTWARE, EVEN IF ORION KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) ORION’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE GREATER OF (I) FEES ACTUALLY PAID BY YOU TO ORION (IF ANY), OR (II) FIFTY DOLLARS ($50). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. ORION DISCLAIMS ALL LIABILITY OF ANY KIND OF Orion’S LICENSORS AND SUPPLIERS. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
10. Unauthorized Applications
You understand that the Product and Software are not designed, intended, authorized or warranted to be suitable for use in the following “Unauthorized Applications”: life support applications, devices or systems; the operation of nuclear facilities; aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines; weapons systems; military or space equipment requiring radiation hardened components; and Enhanced 911 or the E911 emergency calling system. You warrant that you will not use the Product or Service for Unauthorized Applications, and further agree to, without limitation, defend, indemnify and hold harmless Orion against any and all claims, suits, actions, proceedings, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or in connection with your breach of this Section 9.
“Confidential Information” means the Software and all other information disclosed to you that Orion characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Orion. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Orion in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and shall cooperate with Orion in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you shall (i) immediately notify Orion prior to such disclosure to allow Orion an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Orion in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
12. U.S. Government End Users
The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), the Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
13. Export Compliance
The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Software and related technology, as may be required. You will indemnify and hold Orion harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorneys’ fees) arising from or relating to any breach by you of your obligations under this section.
14. Governing Law; Venue
The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Santa Clara County, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Orion may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.
Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect. Any notice to you may be provided by email to the address that you registered with Orion. If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by Orion will be effective only if in writing. Any waiver or failure by Orion to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The Software is deemed irrevocably accepted upon your use of the Software or Product. Orion will have no responsibility to provide maintenance or support services with respect to the Software. Orion is an independent contractor; nothing in this EULA shall be construed to create a partnership, joint venture or agency relationship between the parties. You acknowledge that the Software contains valuable trade secrets and proprietary information of Orion, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to Orion for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA. Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties.
Questions or Additional Information.
If you have questions regarding this EULA, please email email@example.com.