These OrbusInfinity SaaS terms (“SaaS Terms”) are a legally binding contract between the entity accepting these SaaS Terms (“You” or “Customer”) and Orbus Software (“We,” “Us” or “Orbus”), for and on behalf of itself and its affiliates, each individually a “Party” and collectively, the “Parties”.

By executing an Orbus order form (“Order”) specifying the Services (defined below) to be provided by Us to You, that incorporates these SaaS Terms and the additional terms set out in the Order, or by using the SaaS, You acknowledge that you have reviewed these SaaS Terms and agree to be legally bound by them, as of the Effective Date on the Order (“Effective Date”).

1. SERVICES

1.1 Right to use the SaaS. Orbus grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use Orbus’s OrbusInfinity cloud-based products (the “SaaS”) and accompanying Documentation (meaning the current version of the operating manuals, user instructions, technical literature and all other related materials published from time to time by Orbus relating to the use and application of the Services)  as identified in the Order for the subscription term length(s) set out in an Order (the “Term”), subject to these SaaS Terms.

1.2 The SaaS, together with the technical support services for the SaaS (“Support Services”) and the Professional Services related to the SaaS (as defined in clause 5.1) will be together referred to as “Services.” We shall, as part of the Services, provide You with our standard Support Services in accordance with the support terms in effect at the time that the Services are provided. The current version of the support terms are as set out at the link provided in the Order (or at such other location as We notify You) (“Support Terms”), as may be amended in our sole and absolute discretion from time to time.

1.3 The right of use of the Services is provided solely for use by any individual who is authorized by You in accordance with these SaaS Terms to access and use the Services (“Authorized User”), the number of which is specified in the Order and in any additional Orders.

1.4 You may at any time order additional Services by submitting another order (“Add-on Order”). Such Add-on Order will include details of the Services and additional Fees. If an Add-on Order is fully executed by both You and Us, it will become incorporated into and subject to the terms of these SaaS Terms, and the other terms listed on the Add-on Order. Any Add-on Order will be coterminous with the originating Order.

2. PERMITTED USE & SYSTEM CONTROL

2.1 You shall not and shall not permit any Authorized Users to:

a) reverse engineer, decompile, disassemble, re-engineer or otherwise attempt to discover the source code or object code of any part of the SaaS, except as may be expressly permitted by applicable law;

b) reproduce, copy, modify, adapt, create derivative works from or transmit the Services or any component thereof, or transfer, assign, sell, rent, lease, license, distribute, commercially exploit, or otherwise make the Services available to any third party, except as may be expressly permitted by applicable law;

c) attempt to access all or any part of the SaaS in order to build a competing product or service;

d) attempt to obtain, or assist third parties in obtaining, unauthorized access to the SaaS;

e) remove or deface any notice of confidentiality or trademark that may be displayed via the SaaS;

f) introduce to or transmit via the SaaS any virus, worm, Trojan horse or other malware or destructive element;

g) use, transfer or reassign any part of the Services  or any technical information relating to the Services  to, or make the same accessible from, any country, territory or person in any manner or for any purpose that risks violation of legislation and regulatory requirements which apply to the export, re-export, transfer, release or shipment of goods, technology or software (“Export Law”) (including the EU Dual Use Regulation (EC) No 428/2009; the UK Export Control Order 2008; the U.S. International Traffic in Arms Regulations; and the U.S. Export Administration Regulations); and/or

h) use, transfer, reassign or make available any part of the Services or any technical information relating to the Services to any person, country or territory in any manner or for any purpose that risks violation of legislation and regulatory requirements related to economic or financial sanctions (“Sanctions Law”) (including those implemented, administered and enforced by the UK Office of Financial Sanctions Implementation, the US Office of Foreign Assets Control, the United Nations and the Council of the European Union).

2.2 We reserve the right to suspend the Customer's (or any Authorized User's) access to or use of the Services (or part thereof), or to vary any Authorized Users permissions whenever We deem such action necessary, in our discretion, including if: (a) We become aware that You and/or any Authorized User is in violation of clause 2.1; (b) We believe Your use of the Services could adversely impact other customers' use of the Services or the underlying infrastructure, network or servers used to provide the Services; or (c) there is suspected unauthorized third party access to the SaaS. Unless the reason for suspension constitutes a material breach of these SaaS Terms by the Customer which is incapable of remedy, the Parties agree to work together to remedy the circumstances in order to minimise the period of suspension. Where practicable and unless the reason for suspension constitutes a material breach of these SaaS Terms by the Customer, We will provide the Customer with at least five (5) days’ advance written notice prior to any suspension, so that Customer may cure the issue leading to potential suspension.

2.3 Each Party has sole control over the operation, provision, maintenance, and management of its own systems and materials. Customer has responsibility for all access to and use of Orbus’s materials by any person by or through the Customer’s systems or any other means controlled by Customer or any Authorized User.   

3. TECHNICAL REQUIREMENTS & THIRD PARTY MATERIALS

3.1 We shall, as part of the Services, provide You with our technical requirements document, the current version of which is set out here or at such other location as We notify you and which may be amended in our sole and absolute discretion from time to time. You acknowledge that compliance with these technical requirements is necessary for the timely deployment of the SaaS and for the full utilization of the SaaS.

3.2 If you cannot comply with the technical requirements, We may make available to you other products and solutions, which may require additional services and fees. Use of other products may require the review and acceptance of an End User License Agreement (“EULA”).   You acknowledge that by purchasing and using an Orbus product, You are agreeing to the terms of use in these SaaS Terms or the EULA, whichever applicable. In the case of conflicting terms, these SaaS Terms will apply.   

3.3 Where the Services involve an integration at your request or part of the offering selected by You, it may contain links to third party websites, and Your access to and/or use of any such website is at Your own risk. We do not take responsibility of, approve or endorse any third-party website, including its content and services. We will not be liable for any information or services provided by any third party.

3.4 You acknowledge that certain features and functions of the Services may (at Your sole cost, as applicable): (i) be limited to specific levels of SaaS subscription as set out in the applicable Order; and (ii) require the installation and/or use of software provided by a third party. You also acknowledge that the failure to install the latest versions or compatible versions of such software or third party software may result in a loss of functionality. Accordingly, You shall procure Authorized Users access to, and install the latest versions or compatible versions of, such software and/or third party software. 

3.5 You further acknowledge that certain functions and features may be dependent on access to third party software through APIs made available by third party suppliers. We shall have no liability for any failure to provide the Services if Your access to the APIs or third party software is amended, withdrawn, discontinued or otherwise limited.

3.6 The SaaS includes materials owned and licensed by third parties (“Third Party Materials”). Some Third Party Materials are open source code, however no open source code in the SaaS is used under a copyleft licence. In addition to the terms herein, Third Party Materials are governed by and subject to the terms and conditions of the applicable licence terms each a “Third Party Licence”. A list of Third Party Materials is available on request. In the event of any conflict between the applicable Third Party Licence and these SaaS Terms, the Third Party Licence shall take precedence but only to the extent of such conflict.

4. FEES AND PAYMENT

4.1 All payments set out in an Order are due and payable within thirty (30) days of date of invoice by wire or electronic transfer and are non-refundable, non-cancellable, and irrevocable except as expressly stated in these SaaS Terms. All payments shall be made without set-off. Customer will pay all taxes and duties including, but not limited to, sales, use, rental, receipt, personal property, and other taxes (but excluding taxes based upon Orbus's income), which may be levied or assessed in connection with these SaaS Terms. Any payment that is not paid in accordance with the terms of these SaaS Terms will accrue interest at the rate of four per cent (4%) per annum above the base rate of Barclays Bank PLC for the time being in force, accruing daily from the date due (both before and after judgment), and Customer pays all costs of collection, including reasonable legal fees and expenses.

5. PROFESSIONAL SERVICES

5.1 Professional Services (meaning the services performed by Orbus’ professional services team members for the purposes of activities such as (but not limited to) set-up and deployment, configuration and training) can be purchased on a recurring or non-recurring basis, subject to the terms below.  A Professional Service Day is 7.5 hours. Any Professional Services Days not used within the time periods defined below shall automatically expire. No refunds shall be provided for any unused Professional Service Days. Details of the work to be performed will be described in a statement of work provided to You.

a) Non-recurring: Professional Services purchased on a non-recurring basis must be used within six (6) months of the Order’s Effective Date.

b) Recurring: Professional Services purchased on a recurring basis shall be used within twelve (12) months of the Order’s Effective Date (“Initial Professional Services Period”) or commencement of a Professional Services Renewal Period (defined below). Professional Services shall automatically renew for successive terms of equal duration to the Initial Professional Services Period (each a “Professional Services Renewal Period”) unless either party gives written notice to the other party opting out of the automatic renewal and such notice is received by the other party no later than ninety (90) days’ prior to the commencement of the applicable Professional Services Renewal Period.

5.2 Where the date for the performance of Professional Services has been agreed, any cancellation or rescheduling of the Professional Services requires at least three (3) business days' written notice or, where international travel is required, ten (10) business days’ written notice. If the Customer cancels the Professional Services giving less than the above required notice, the Professional Services Fees remain chargeable and no refund will be offered. In addition, the Customer shall also be responsible for any non-refundable or non-cancellable expenses incurred or committed to by the Supplier, including air travel and hotel accommodation.

6. WARRANTIES

6.1 SaaS Warranty. Orbus warrants that the SaaS (i) when properly used, will perform substantially in accordance with the Documentation and (ii) is subject to standard virus scanning methods designed to detect and remove malware. Orbus does not warrant that the SaaS will be uninterrupted or error free. Orbus does not and cannot control or warrant the flow of data to or from Orbus’s or Customer’s network and other portions of the internet.

6.2 Professional Services Warranty. We warrant that the Professional Services shall be performed with reasonable skill and care and in a professional and workmanlike manner consistent with applicable industry standards. This warranty shall commence upon completion of the applicable Professional Services and continue for a period of thirty (30) days ("Professional Services Warranty Period").

6.3 If during the Professional Services Warranty Period, We receive written notice from You of the non-conformity of the Professional Services with the warranty in clause 6.3, We shall, at our expense, promptly re-perform any Professional Services that fail to meet this limited warranty. You shall provide all information reasonably necessary, and reasonable assistance to Us, to enable Us to comply with our obligations under this clause 6.3 and to furnish a remedy for any breach of this warranty. Unless otherwise set out in these SaaS Terms, this clause sets out the Customer’s sole and exclusive remedy and Orbus’s sole liability for warranty claims related to the Professional Services.

6.4 CUSTOMER ACCEPTS THAT THE SERVICES ARE PROVIDED ‘AS IS’. UNLESS OTHERWISE EXPRESSLY STATED HEREIN ORBUS DISCLAIMS ALL OTHER WARRANTIES,  STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF ACCURACY, SATISFACTORY QUALITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 Definitions:

“Intellectual Property Rights” means (a) patents, utility models, petty patents, rights in trade secrets and other confidential or undisclosed information (such as inventions (whether patentable or not or know-how), registered designs, rights in copyright (including moral rights), database rights, design rights, rights in copyright (including moral rights), database rights, design rights, and trademarks; (b) all registrations or applications to register any of the rights referred to in (a); and (c) all rights in the nature of any of the rights referred to in (a) including continuations, continuations in part and divisional applications, rights in unfair competition and, without prejudice to anything else in this definition, rights to sue for passing-off and rights having the equivalent or similar effect to, and the right to apply for any of the rights listed in this definition, in any country or jurisdiction;

“Background IP” means all Intellectual Property Rights other than in the Foreground IP but including with respect to Orbus any Feedback and any improvements, modifications or enhancements made to the Services at any time, and with respect to the Customer includes Customer Data;

“Foreground IP” means the Intellectual Property Rights arising out of the performance of the Services and outputs of the SaaS Services under these SaaS Terms, including documents, reports, diagrams, etc, but excluding Background IP and Feedback;

“Feedback” means comments, suggestions, requests, messages or recommendations for improvements to or concerning the functionality. Features or operation of the Services by the Customer and/or the Authorized Users;

“Customer Data” means all data embodied in any form uploaded to the SaaS by the Customer any Authorized User but excluding Usage Data and Improvements;

“Usage Data” means data generated in connection with access and use of the Services by the Customer and the Authorized Users (but which does not contain any Customer identifiable information) such as log reports generated as a result of error reporting and reports of how many times certain features have been used in order to inform improvements in the Services.

7.2 All Intellectual Property Rights in the Background IP will be the sole and absolute property of, and will vest and remain vested in, the Party owning it as of the Effective Date, or where applicable, the third party from whom the right to use the Background IP has derived.

7.3 All Intellectual Property Rights in the Foreground IP shall vest in and be owned absolutely by the Customer.

7.4 We will collect, maintain, and process Usage Data through the SaaS. This information is used to provide insights on usage and the performance of the SaaS for Us to improve the Services and/or develop updates. There is no collection or processing of Customer Data or Personal Data (as defined in the Data Processing Addendum) as part of this data collection.

8. INTELLECTUAL PROPERTY INDEMNITY

8.1 Subject to clause 8.2 and subject always to the indemnified Party’s proper observance of its obligations under these SaaS Terms, each Party shall indemnify the other Party against all damages awarded against the indemnified Party in relation to any third party claim that the indemnified Party’s use of the SaaS (with respect to the Customer) and material provided to Orbus (with respect to Orbus) constitutes infringement of any Intellectual Property Rights owned by a third party, on the condition that the indemnified Party shall:

a) promptly notify the indemnifying Party in writing of any infringement or allegation of infringement;

b) allow the indemnifying Party to conduct all negotiations and proceedings, defences and give the indemnifying Party all reasonable assistance as requested; and

c) make no admission relating to the infringement or alleged infringement.

8.2 If at any time an allegation of infringement of Intellectual Property Rights is made against Us regarding the SaaS, We may, at our own expense and option:

a) procure for You the right to continue using the SaaS or part thereof;

b) replace or modify the SaaS to make it non-infringing without substantially affecting the functionality of such SaaS;

c) take such action as We shall reasonably deem appropriate to avoid or settle any such infringement or alleged infringement; or

d) if the remedies in 8.2(a) and 8.2(b) are not reasonably available, We may terminate the Order without any additional liability or obligation to pay liquidated damages or other additional costs to You, provided that We promptly refund to you any Fees paid by You in advance in respect of any period that falls after the date of termination.

8.3 If We elect to procure a license in accordance with clause 8.2(a) or to modify the item(s) or to supply substitute item(s) under clause 8.2(b) and such exercise of the said rights has avoided any claim, demand or action for infringement or alleged infringement, or if We have otherwise avoided or settled the claim, demand or action for infringement or alleged infringement in accordance with clause 8.2(c), or if We have refunded the applicable Fees to You in accordance with clause 8.2(d), then We shall have no further liability thereafter in respect of the said claim, demand or action.

8.4 We shall have no liability for any claim of infringement resulting from:

a) any modifications or alterations to the SaaS not made by Us;

b) any information, design, specification, instruction, software, data or material not furnished by Us;

c) use of the SaaS, alone or in combination with any other software, except as permitted in these SaaS Terms or as set out in the Documentation;

d) any breach of contract or any negligent, wilful or fraudulent act or omission by the Customer, its employees, agents or subcontractors.

8.5 The foregoing provisions of this clause 8 state the entire liability of the Parties with regard to any infringement or alleged infringement of any Intellectual Property Rights arising from the Customer's use of the SaaS.

9. LIABILITY

9.1 Nothing in these SaaS Terms shall exclude or limit either Party’s liability to the other Party for: (i) death or personal injury caused by that Party’s negligence; (ii) wilful misconduct, fraud or fraudulent misrepresentation; (iii) breach of clause 8 (Intellectual Property Indemnity), clause 10 (Confidentiality and Publicity); or (iv) any other liability that cannot, as a matter of law, be excluded or limited.

9.2 SUBJECT TO CLAUSE 9.1, NEITHER PARTY SHALL BE LIABLE TO THE OTHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE FOR ANY OF THE FOLLOWING LOSSES OR DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH, THESE SAAS TERMS AND EVEN IF SUCH LOSSES AND/OR DAMAGES WERE FORESEEN, FORESEEABLE OR KNOWN, OR IF EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF THEM IN ADVANCE: (I) LOSS OF, DAMAGE TO OR CORRUPTION OF DATA NOT HELD BY US; (II) ECONOMIC LOSS; (III) LOSS OF ACTUAL OR ANTICIPATED PROFITS; (IV) LOSS OF BUSINESS REVENUE; (V) LOSS OF ACTUAL OR ANTICIPATED SAVINGS; (VI) LOSS OF BUSINESS; (VII) LOSS OF OPPORTUNITY; (VIII) LOSS OF GOODWILL; OR (IX) ANY INDIRECT, INCIDENTAL, SPECIAL,  OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED.

9.3 SUBJECT ALWAYS TO CLAUSES 9.1 AND 9.2 AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE IN CONNECTION WITH OR ARISING OUT OF THESE SAAS TERMS SHALL BE LIMITED (IN THE AGGREGATE) TO 100% OF THE FEES PAID OR PAYABLE BY THE CUSTOMER TO ORBUS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING WRITTEN NOTIFICATION OF THE CLAIM.

9.4 Neither party will be in breach of these SaaS Terms to the extent that non-performance or delay results from the other Party’s breach of these SaaS Terms, or the other Party’s or a third party’s failure or delay in completing activities, providing access or information, or complying with technical requirements reasonably required to perform the Services.

9.5 Each provision of these SaaS Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks proportionately between the parties. This allocation is reflected in the pricing offered by Us to You and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of these SaaS Terms.

9.6 Some jurisdictions do not allow the exclusion of guarantees, conditions, warranties or terms implied or imposed by any applicable law. Nothing in these SaaS Terms excludes, restricts or modifies any guarantee, warranty, term or condition, right or remedy implied or imposed by any applicable law which cannot lawfully be excluded, restricted or modified.

9.7 Breach of applicable laws on anti money laundering, anti corruption, Export Law and/or Sanctions Law or Customer's obligations in clause 3.1 shall be a deemed to be a material breach not capable of remedy. Customer will indemnify, defend and hold harmless Orbus and its respective officers, agents and employees from and against any and all losses, costs, claims, penalties, fines, suits, judgments and other liabilities (including applicable attorney’s fees) arising out of, relating to or resulting from Customer’s failure to comply with Anti Money Laundering Law, Anti Corruption Law, Export Law, Sanctions Law or Customer’s obligations in clauses 3.1.

10. CONFIDENTIALITY AND PUBLICITY

10.1 “Confidential Information” means any non-public business information, know-how, trade secrets, pricing, and other information, in any form, that is designated as confidential or that a reasonable person should understand to be confidential due to the nature of the information or the circumstances of disclosure, and is disclosed by or on behalf of either party or its affiliates to the other party or its affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, whether before or after the Effective Date. Confidential Information includes, without limitation, Customer Data (which is your Confidential Information), and information regarding the Services, our systems and networks, product plans, security information and assessments, audit reports, pricing information, and the terms of any Order (all of which is our Confidential Information).

10.2 All Confidential Information given by one Party to the other, or otherwise obtained or developed by one Party relating to the other, shall be kept secret and confidential by the receiving Party throughout the Term of these SaaS Terms and for the five (5) years following its termination or expiry and shall not be used or disclosed other than for the purposes of the proper performance of these SaaS Terms or with the prior written consent of the other Party.

10.3 Except with respect to Personal Data, the obligations of confidentiality in this clause 10 shall not extend to any matter or information which the receiving party can show:

a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under these SaaS Terms;

b) was independently disclosed to it by a third party entitled to disclose the same; or

c) is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.

11. TERMINATION

11.1 Each Party shall have the right, without prejudice to its other rights or remedies, to terminate an Order with immediate effect by written notice to the other Party if the other Party:

a) commits a material breach of these SaaS Terms which is incapable of remedy or which, if capable of remedy, has not been remedied within thirty (30) days of receipt of a written notice specifying the material breach and requiring the same to be remedied;

b) is, becomes or admits that it is unable to pay its debts as they fall due or suspends or threatens to suspend payment of its debts;

c) takes any steps with a view to the appointment of an administrator, administrative receiver or liquidator of the other party or its property; or

d) undergoes any event or takes any steps or steps analogous to any event the events or steps set out in clauses 11.1 a) to 11.1 c) (inclusive) occurs in any jurisdiction.

11.2 Except to the extent not permitted by law, We shall have the right, without prejudice to our other rights or remedies, to suspend or terminate at our discretion these SaaS Terms with immediate effect if:

a) You fail to pay any or all of the Fees when they fall due and continue in such failure for more than twenty-one (21) days after receiving written notice that We may exercise our right to terminate these SaaS Terms if payment is not made; or

b) We reasonably believe that it would be unlawful to continue with these SaaS Terms under applicable Laws.

11.3 Upon the expiry or termination of these SaaS Terms:

a) each Party shall (and shall procure that its personnel shall) immediately return all property and Confidential Information belonging to the other Party; and

b) all rights granted to the Customer under these SaaS Terms shall immediately terminate, including any rights of access granted.

11.4 The expiration or termination of these SaaS Terms will not affect any accrued rights of either Party, including any right to receive any payments due but unpaid before expiration or termination.

12. DATA PROTECTION

12.1 Both Parties undertake to comply with the applicable data protection laws as defined in the Data Processing Addendum and shall ensure that its employees, agents and subcontractors shall comply with such data protection laws (as applicable). The Data Processing Addendum is available here. In particular, if the transfer of Personal Data from one Party to the other is required in order to provide the Services under these SaaS Terms, then the Data Processing Addendum shall apply.

13. GENERAL TERMS

13.1 Entire Agreement; Modification; Waiver; Priority; Severability; Digital Signatures. These SaaS Terms constitute the entire and exclusive agreement between the Parties and supersedes all prior written and oral agreements and communications related to the subject matter of these SaaS Terms, including those contained in any Customer-provided purchase orders. Any modifications to these SaaS Terms must be in writing and signed by the duly authorized representatives of the Parties. Any waiver under these SaaS Terms must be in writing and signed by the Party granting the waiver. A waiver granted under these SaaS Terms will not be deemed to be a waiver of any subsequent breach of the same or any other provision of these SaaS Terms. No failure or delay by either Party in exercising any right under these SaaS Terms will constitute a waiver of that right. In the event of any conflict between any provision of these SaaS Terms and any Order incorporated and made part of these SaaS Terms, such conflict will be resolved by giving precedence to the terms in the Order. Any contrary or additional terms and conditions included in any purchase order or similar document (printed or online) related to these SaaS Terms will be invalid and non-binding, even if received, accepted, approved, or signed by a Party. If any provision of these SaaS Terms is held invalid or unenforceable, the provision will be limited to the minimum effect necessary and the remaining provisions of these SaaS Terms will remain binding and enforceable. Orders may be executed in one or more counterparts, with the same effect as if the Parties had signed the same document. The Parties agree to the use of digital signatures.

13.2 Independent Contractors. The Parties are independent contractors and have no power to bind or incur obligations on the other Party’s behalf.

13.3 Nonsolicitation. During the term of these SaaS Terms and for one (1) year thereafter, Customer shall not directly or indirectly solicit or encourage any employee or independent contractor of Orbus to leave or terminate their relationship with Orbus to accept employment with Customer. This clause shall not apply to any person who responds to a general advertisement for employment with Customer. In case of breach of this clause 13.3, Customer will pay to Orbus the equivalent of the employee’s or independent contractor’s yearly pay.

13.4 Force Majeure. Neither Party is liable for failing to perform an obligation under these SaaS Terms if such failure is due to any act or condition beyond that Party’s reasonable control.

13.5 Assignment. Neither Party may assign or transfer its rights or obligations under these SaaS Terms in any way and may not grant sub-licenses without the other Party’s prior written agreement (such agreement not to be unreasonably withheld).

13.6 Third Parties. A person who is not Orbus or the Customer shall have no right to enforce any term of these SaaS Terms.

13.7 Anti-Bribery and Corruption. Both Parties shall comply with all applicable laws relating to anti-bribery and anti-corruption including the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act 2010 or any other similar legislation in any other jurisdiction.

13.8 Notices. All notices, demands, or other communications by any Party to the other shall be deemed to have been duly given when: (i) made in writing and delivered in person with signed receipt, or (ii) sent via a nationally recognized, traceable, overnight delivery carrier, to the address of the other Party in the Order, or to such address as the parties may provide to each other in writing from time to time or (iii) sent by email to (for notices sent to Orbus) [email protected].com and (for notices sent to the Customer) to the contact specified in the Order, or where none is stated to the general email address of the Customer. Notice will be effective upon delivery for (i) and (ii) and upon transmission for (iii).

13.9 Dispute Resolution. In the event of a dispute, each Party will appoint a senior management representative to negotiate in good faith to resolve the dispute before commencing formal proceedings. Formal proceedings may not commence until thirty (30) days have passed since the initial request to negotiate the dispute, provided that a Party may file for formal proceedings at any time to avoid the expiration of any limitations period or apply for interim relief.

13.10 Governing Law and Jurisdiction. Based on the Orbus Software entity with which Customer agreed and which is specified in the Order, each Party agrees to the applicable governing law below without regard to choice or conflict of law rules. In the event either Party has initiated formal proceedings, each Party agrees to submit to the exclusive jurisdiction of the applicable courts below with respect to any dispute, claim, action, suit or proceeding (including non-contractual disputes or claims) arising out of or in connection with these SaaS Terms, or its subject matter or formation. To the extent not prohibited by law, each of the Parties hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to these SaaS Terms.

13.11 Australian Local Law Requirements (only Applicable to Customers subject to Australian Law).

a) In the event that performance by Orbus of any obligation under these SaaS Terms constitutes a supply of goods or services to a consumer as defined in the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended) or relevant State or Territory legislation (the "Australian Consumer Acts"), nothing contained in these SaaS Terms excludes restricts or modifies any condition, warranty, guarantee or other obligation in relation to these SaaS Terms and any goods and services to be supplied hereunder which is implied or imposed by any Australian Consumer Act and which cannot be excluded (a "Non-Excludable Provision"). If Orbus is able to limit its liability to You for breach of a Non-Excludable Provision, then Orbus’s liability for breach of the Non-Excludable Provision is limited exclusively (as far as applicable Laws do not prohibit) to one or more of the following at Orbus’s option: i) in relation to goods: (a) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or the supply of equivalent goods; or (b) the repair of the goods or payment of the cost of having the goods repaired; and ii) in relation to services: (a) the supplying of the Services again; or (b) the payment of the cost of having the Services supplied again.

If You are a ‘consumer’ as defined by the Australian Consumer Law, our Services come with guarantees that cannot be excluded under the Australian Consumer Law. If so, for major failures with the Service, you are entitled: i) to cancel your service contract with us; and ii) to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the Service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract. These rights may be lawfully limited in respect of goods or services not ordinarily acquired for personal, domestic or household use or consumption. To request a replacement or a refund, please send your written request to Orbus by letter or email at the addresses set out in the relevant Order.

14. ADDITIONAL TERMS FOR FLOW DESIGNER AND FLOW MARKETPLACE

14.1 Where included in an Order this clause 14 shall apply for Customer’s use of Flow Designer and/or Flow Marketplace as applicable.

14.2 Flow Designer

a) Flow Designer provides custom integrations and automations built by Customers on a self-service basis. Where purchased by the Customer, Professional Services Days may be used by the Customer to support in this work.

b) Where the Customer has built integrations and/or automations, responsibility for the functionality, version management, issue resolution and maintenance rests with the Customer.

c) Notwithstanding b) above, where the Customer has built integrations and/or automations with the involvement of Orbus’ Professional Services team members, to the extent any issue with functionality, version management, issue resolution and maintenance has been caused by Orbus’ Professional Services team, clauses 6.1 to 6.3 inclusive of these SaaS Terms shall apply.

14.3 Flow Marketplace

a) Flow Marketplace provides premium integrations and automations purchasable by Customers for specific applications, produced by Orbus.

b) Responsibility for the functionality, version management, issue resolution and maintenance of integrations and automations rests with Orbus.

The Support Services and Support Terms shall apply for any issues with Flow Marketplace integrations and automations.