In these Terms and Conditions, Vue Events, Inc. and its Agents are referred to as “OrcaVue,” “we” or “us,” and the Customer and its Agents are referred to as “Customer,” “you” or “your.” “Parties” refers to OrcaVue and the Customer collectively, while “Party” refers to one or either of them.
Any capitalized words or phrases that are not defined when they are used in these Terms and Conditions are defined in Section 5.1 below.
By accepting these Terms and Conditions, you acknowledge that you are at least 18 years old and that, if accepting on behalf of a company or entity, you have the authority to bind that company or entity to these Terms and Conditions. If there is some aspect of these Terms and Conditions that you or your company/entity cannot agree with, then a separate written agreement detailing revised terms and conditions must be executed by OrcaVue and you (or your company/entity) prior to entering into any form of acceptance listed above.
By agreeing to these Terms and Conditions, you accept that OrcaVue has the right to alter or amend them at any time.
1.3 Orders, Prices and Payment
All Orders you place for Equipment or Services from OrcaVue are subject to acceptance by OrcaVue and to product or service availability. Note that some Equipment and Services may be purchased, rented, or otherwise included as part of other Equipment and Services (e.g., a software license included with an OrcaVue 360° Video Booth) and may provided at no cost.
Your Order for any Equipment and Services will be followed by an order confirmation in the form of an invoice or Order acknowledgement (a “Confirmation”) signifying OrcaVue’s acceptance of your Order. If you are placing an Order through our website at https://orcavue.com (the “Website”), you will be asked to pay by credit card at the end of the ordering process. If you are placing an Order by means other than our Website, your Confirmation will include instructions to make full payment. Unless other payment terms are expressly set forth in the Confirmation, the purchase price, rental fee or License Fee applicable to your Order must be paid in full before we will ship or deliver the ordered Equipment and Services to you, unless other payment terms are expressly set out in a writing signed by OrcaVue.
The total amount due on Orders includes sales tax applied to purchases of Equipment in accordance with applicable state and local regulations based on your shipping address or where Services are delivered. The applicable sales tax amount is indicated on the payment page of the online cart (if you order online) and on your Order Confirmation.
Note, however, that the effort to simplify the language also means that many legal details have not been included. Therefore, for a complete understanding of the Terms and Conditions, you must also reference Part V, which includes detailed legal provisions that cover all of the previous Parts as well as more general legal clauses. You are encouraged to consult an attorney before agreeing to these Terms and Conditions.
PART II - PURCHASES AND RENTALS
You are responsible for the shipping and delivery costs associated with the Equipment you purchase or rent, and those costs will be specified on your Confirmation. Unless you choose to pick up your Order at OrcaVue’s office, the Equipment you purchase or rent will be delivered to the address you give OrcaVue on your Order, either directly by OrcaVue or by a third-party common carrier such as the U.S. Postal Service or United Parcel Service. The Equipment you ordered for purchase or rent will be listed on the documents enclosed with the delivery, and you bear all risks of loss and/or damage to Equipment beginning at the time delivery is made to you (“Delivered” or “Delivery”), as follows:
(a) when you pick them up from OrcaVue’s place of business, at the time you receive the Equipment;
(b) in the case of shipping by OrcaVue from its place of business, when it is Delivered to you, or
(c) in the case of Delivery by OrcaVue, when Delivered to the location you specified in your Order.
Upon receiving the Equipment, you must promptly ensure that it matches your Order, and within 24 hours after Delivery, you must notify OrcaVue if anything is missing or if there are any discrepancies from your Order. If you fail to notify OrcaVue within this 24-hour time period, you will be considered to have irrevocably accepted the Equipment as Delivered.
OrcaVue may assess an additional charge for related Services rendered by OrcaVue on purchases, rentals or Licenses during non-business hours (including without limitation technical support for the operation of the Equipment). Rental customers agree to pay all taxes, shipping charges, and all other fees directly incurred by OrcaVue in connection with Customer’s rental of Equipment and Services; Customer acknowledges that such costs will be billed and collected by OrcaVue before completion of the rental and Services.
2.2 Limited Warranty on Equipment
OrcaVue warrants that at the time of Delivery, the Equipment will operate (or be performed) in accordance with their specifications. Within 24 hours following the Delivery of Equipment, you must notify OrcaVue if any part of the Equipment malfunctions or otherwise fails to perform in accordance with its specifications. OrcaVue will have no responsibility for any malfunction or other failure of the Equipment that is reported after expiration of the rental period or within 24 hours of Delivery (whichever is sooner).
You cannot attempt to service or repair any of the Equipment and any such attempt, service or repair will void OrcaVue’s limited warranty. The limited warranty will not apply to any malfunction resulting from mishandling or improper operation of the Equipment after Delivery.
(b) your use of the Equipment, or your allowing others to use (or failing to prevent others from using) the Equipment, in an unsafe manner or under unsafe circumstances, including without limitation situations where:
(i) the user of the Equipment may have impaired motor skills, vision, or judgment as a result of drug or alcohol use or other condition;
(ii) you fail to properly monitor, supervise or instruct users on how to properly use the Equipment, including but not limited to instructing Users not to twist on or around the Equipment and not to jump or fall off any elevated part of the Equipment;
(iii) you leave a “360° Camera Rig” unattended at any time;
(iv) you fail to secure Equipment properly to the arm of a “360° Video Booth” unit, resulting in damages to any person or property; or
(v) you fail to watch the instructional video or read written materials included with delivery of the ordered Equipment before using any of the Equipment.
Please note that there are additional disclaimers regarding OrcaVue’s liability which are contained in Section V below.
2.4 Malfunctioning Purchased Equipment
If any purchased Equipment does not perform in accordance with its specifications set out in the documents that will accompany the Equipment, you should notify OrcaVue first and then ship the Equipment back to OrcaVue (at your cost). If we find a manufacturing defect that was not caused by normal wear and tear, we will repair it and return the Equipment to you at our cost. If we find damage that is not covered by our limited warranty, we will notify and invoice you of the cost to repair and return shipping, and you will have thirty (30) days to pay such costs; if we do not receive payment from you during that 30-day period, we will dispose of the defective Equipment.
This Agreement constitutes a lease and not a sale of the Equipment or the creation of a security interest therein. No part of the rental payments made under these Terms and Conditions will be deemed payment toward the purchase of any of the Equipment. OrcaVue retains title to the Equipment at all times. Customer hereby acknowledges OrcaVue’s ownership and title in the Equipment and agrees to keep the Equipment free of all liens and encumbrances. Customer will not assign any rights under these Terms and Conditions or sublease the Equipment to any other person or entity. OrcaVue may assign its rights and obligations under these Terms and Conditions without the consent of Customer; in such case, Customer waives the right to assert any claim against OrcaVue as a defense against any such assignee.
2.6 Cancellation of Rental Orders
Orders for rentals that are cancelled less than 72 hours before their Scheduled Delivery Date are subject to a cancellation fee equal to 20% of the rental amount set forth on the Confirmation. For these purposes, “Scheduled Delivery Date” means the scheduled date on which (a) Customer is scheduled to pick up the rented Equipment, (b) OrcaVue is scheduled to ship the Equipment, or (c) OrcaVue is scheduled to deliver the Equipment.
Any amount owed by a Customer and not paid when due will bear interest at the rate of 1.50% per month beginning one day after such amount was due. No allowance or refunds will be made for items delivered to but not used by rental Customers.
The rental period for Equipment shall be that period set forth in the Confirmation (the “Rental Period”). If requested by OrcaVue, before taking Delivery of the Equipment, Customer will provide to OrcaVue: (a) a Certificate of Insurance from an insurer reasonably acceptable to OrcaVue, with OrcaVue named as the loss payee, in a form and amount satisfactory to OrcaVue and evidencing Customer’s insurance covering all risk of loss to the Equipment; Customer’s liability hereunder is primary and will not be reduced unless, and only to the extent that, OrcaVue actually receives payment under Customer’s insurance; and/or (b) a valid credit card and written authorization to charge the credit card in the event of damage, loss, theft, failure to return the Equipment or incursion of additional charges by the Customer during the Rental Period, such as pursuant to Section 2.8.
2.8 Return of Rented Equipment
If after completion of the rental:
(a) OrcaVue (or a shipping service arranged by OrcaVue) is picking up the Equipment, then the Equipment must be available for pickup at the address at which the Equipment was delivered no later than 8:00 a.m. on the first business day after the last day of the Rental Period. If the Equipment is not available for pick-up or received by OrcaVue on time, as applicable, Customer will be responsible for the greater of (x) an additional rental day (at the then-current price set by OrcaVue) for each day after the end of the Rental Period until the Equipment is returned, or (y) any rental revenue lost by OrcaVue arising from or relating to Customer’s failure to return the Equipment on time.
(b) Customer is returning the Equipment to OrcaVue, then the Equipment must be received by OrcaVue no later than 12:00 p.m. on the first business day after the last day of the Rental Term, and Customer bears all risk of loss until the Equipment is received at OrcaVue’s place of business; or
(c) Customer is returning the Equipment via a third-party shipping service, then the Customer must deposit the Equipment with the shipper before 12:00 p.m. (or at the time when the first pick-up by that shipper occurs) on the first business day after the last day of the Rental Term, and must purchase insurance on the Equipment at its full value from the common carrier, and Customer will bear all risk of loss until the Equipment is received at OrcaVue’s place of business.
OrcaVue may assess an additional charge in accordance with its then-current rate schedule for post-rental pickup and delivery, or early pre- or post-rental pickup.
Customer’s obligations hereunder will survive expiration of the Rental Period.
If any rental Equipment does not perform in accordance with its specifications (which are set out in the documents that will accompany the Equipment), then Customer should notify OrcaVue immediately to request repairs or replacement.
Customer will be responsible for and liable to OrcaVue for the direct and indirect cost to repair or replace any rented Equipment that, during the period between Delivery and return to OrcaVue, is lost, stolen or damaged (other than from ordinary wear and tear or a malfunction to which OrcaVue’s limited warranty applies), plus 20% of the total of such direct and indirect costs, which additional amount is intended to reimburse OrcaVue for its overhead and other indirect expenses incurred in repairing or replacing such lost, stolen, or damaged Equipment. Customer also will be liable to OrcaVue for any rental revenue lost during the time period in which the damaged, lost or stolen Equipment is being repaired or replaced.
Acceptance by OrcaVue of the return of any rented Equipment will not be deemed a waiver by OrcaVue of any claims that OrcaVue may have against Customer under these Terms and Conditions, even though any damage for which Customer is liable hereunder is discovered later.
PART III – LICENSING
Subject to these Terms and Conditions (and, if applicable, to your Order from the OrcaVue Website), OrcaVue grants to you (the “Licensee”), and Licensee accepts, a limited, nonexclusive, nontransferable license to use the Software for the designated period (the “License Term”) for the purpose of capturing videos and other types of media, solely in conjunction with a 360° camera rig (the "Permissible Use"). Use of the Software for other purposes is not granted. This means that for the License Term, Licensee has the right to use the Software in the manner described in these Terms and Conditions (and in any instructions that OrcaVue may give Licensee regarding the Software).
Licensee may modify its own hardware or system software and interfaces in order to make them more compatible with the Software, but OrcaVue is not responsible in any way for the modification expenses, any problems that arise from those modifications, or the Software’s failure to work with Licensee’s modifications. Licensee may not modify or change the Software in any way or this License will be revoked and all warranties under these Terms and Conditions shall be nullified and of no effect whatsoever.
Licensee’s violation of these Terms and Conditions at any time will give OrcaVue the right to terminate the License and Licensee’s access to the Software.
Having this License does not mean that you own the Software. OrcaVue (and its own licensors) are the owners of all right, title, and interest (including copyright and other intellectual property rights, or informational rights) in and to the Software (and its accompanying instructions or other documents) and all legally protectable elements or derivative works thereof. No right, title, or interest in the Software will be deemed to be transferred or assigned to Licensee or any User or Guest by virtue of these Terms and Conditions or Licensee's use of or access to Software. OrcaVue reserves the right to modify, update or change the Software at any time in its complete discretion.
Your comments and suggestions about the Software are welcome. However, by making such comments or suggestions, you do not own any rights to or interests in any improvements or modifications that we make. OrcaVue (and its licensors) shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into its Software any suggestions, enhancement requests, recommendations or other feedback that you provide relating to the operation of the Software.
OrcaVue and/or its licensors may place copyright and/or proprietary notices, including hypertext links, within the Software indicating their proprietary interests therein. You may not alter or remove such notices without OrcaVue’s (or its licensor’s, as the case may be) written permission. OrcaVue retains all interest to software, modifications, improvements, upgrades, derivative works and all other intellectual property rights incorporated in or used by the Software. Customer will have no right to or interest in any of OrcaVue’s or its licensors’ intellectual property, including but not limited to copyrights, trade secrets, know-how, patents, websites, internet domain name registrations, trademarks or trade names, applied for, owned, used or claimed now or in the future by OrcaVue, its Affiliates or licensors.
Nothing in these Terms and Conditions is intended to give either Party ownership or unfettered usage rights of the other Party’s logos or trademarks (herein also referred to as "Proprietary Rights"). Each Party agrees to use only the trademark, logo and trade names designated by the other Party as subject to these Terms and Conditions. Upon termination of these Terms and Conditions for any reason whatsoever, or upon request by either Party, the other Party shall immediately discontinue the use of the requesting Party’s owned or licensed Proprietary Rights.
Each License is continuous, and you agree that your License will automatically renew at the end of each License Term unless you notify us otherwise before the auto-renewal date. Upon auto-renewal for a new term, we will charge you the undiscounted price then in effect (which may have changed since the previous License Term) plus tax. If you would like to cancel the automatic renewal, please check the appropriate box when you accept these Terms and Conditions. No refunds are issued on License Fees once they are paid.
Typically, SMS charges are granted to Licensees at no cost, but we reserve the right to charge for excessive SMS use by the Customer.
3.4 Licensor’s Warranties
In order to obtain the License, you agree and warrant that you:
· Will not try to “reverse engineer” the Software or duplicate or copy the Software. If you do, that may cause substantial damages to OrcaVue that we may have to file a legal action to recover;
· Agree to keep your passwords, account number, and certain other information confidential, and agree to be responsible for all Guests and Users of your account maintaining the confidentiality of your passwords, account number, and other system access information provided by OrcaVue;
· Take responsibility for making sure that your hardware and system software (including any interfaces) are compatible with the Software, as we are not responsible for any damages caused by not doing so;
· Do your best to keep the Software in a secure environment where it is protected and unauthorized people cannot access it, delete it, change it, or otherwise cause damage to it;
· Will pay OrcaVue the License Fee as described herein; and
· Will abide by all of the requirements set out in these Terms and Conditions.
3.5 OrcaVue’s Storage, Protection and Deletion of Captured Data
OrcaVue stores Captured Data on secure third-party servers and access to Captured Data is available through a password-protected “Admin Site.” OrcaVue does not own the Captured Data that is stored in its system. Unless the Licensee and OrcaVue agree otherwise in writing, OrcaVue will not use Captured Data for its own purposes or share it with any third party other than the Licensee, Licensee’s Authorized Users, its Guests, or its assignee. Captured Data will remain on the system for at least 60 days after they are uploaded to the system.
It is important to note that if a User or Guest posts their Captured Data to a social media site such as Facebook, Instagram, TikTok, or SnapChat, or displays it in any type of public gallery, OrcaVue is no longer in control of the Captured Data and we are unable to restrict the use or removal of the Captured Data that is posted outside of our own system.
3.6 Limitation on Liabilities
Each of the Parties is obligated to take reasonable steps to prevent any person or property from incurring Losses resulting from anything that the Party itself does, or does not do, in carrying out these Terms and Conditions. If a person or property does sustain a Loss directly and wholly due to one Party’s negligence, then the other Party does not have to indemnify the negligent Party, and the negligent Party will be entirely liable for the Loss.
Neither Party will be liable to any third party unless the claim is related to a Party’s violation of its Representations and Warranties in these Terms and Conditions, and even if the claim is related to such a violation, the maximum that the violating Party can be liable for is the amount of money paid under these Terms and Conditions.
OrcaVue disclaims and will not be liable for any malware or viruses contained in or attached to software that it licenses from a third party licensor.
PART IV - SERVICES
Capitalized terms used herein shall have the meanings set out in the text, or otherwise as follows:
· "Affiliates" means any entities that directly or indirectly control, are controlled by, or are under common control with the identified company.
· “Agents” means a person’s or entity’s officers, shareholders, directors, employees, subsidiaries, consultants, contractors, subcontractors, parents, agents, Affiliates, or Users.
· “Authorized User” means an individual authorized by Licensee to use the Software or a Device that utilizes the Software, subject to these Terms and Conditions and to whom Customer (or OrcaVue, at your request) has supplied a user ID and password. Authorized Users may include, among others, Licensee’s Affiliates, Agents, and Guests.
· “Captured Data” means any Guest data, including media, videos, pictures, data, email addresses, SMS numbers, social media names, or any other digital data, in any form, that is captured by or on behalf of a User via the Software.
· “Confidential Information” is defined in Section 5.11.
· “Confirmation” is defined in Section 1.3.
· “Customer,” “you,” or "your" is defined in Section 1.1.
· “Customer’s Indemnified Parties” is defined in Section 5.8.
· “Delivered” or “Delivery” is defined in Section 2.1.
· “Device” refers to any type of photo capture or data capture hardware, including but not limited to an iPad, tablet, smartphone, kiosk, event station, Personal Digital Assistant, 360° camera rig, mobile device, or mobile camera unit, whether purchased or rented from OrcaVue by the User, that is used to capture data, video, photos or any other type of media, which are, in turn, uploaded to the OrcaVue servers or used in conjunction with the Software.
· “Effective Date” is defined in Section 1.2.
· “Equipment” is defined in the Preamble to these Terms and Conditions.
· “License” means the license granted by OrcaVue to the Licensee, subject to these Terms and Conditions, to use the Software.
· “License Fee” is defined in Section 3.3.
· “License Term” is defined in Section 3.1.
· “Licensee” is defined in Section 3.1.
· “Media Gatherers” means anyone using the Software in gathering videos or other media that have been recorded by a Device. A Media Gatherer is typically a business entity who uses the Software for the viewing benefit of their Guests. Media Gatherers typically download the Software to a Device and login to access the Captured Data and send it (or a link to it) to Media Viewers.
· “OrcaVue,” "Our,” or "We" is defined in Section 1.1.
· “OrcaVue 360° Camera Rig” means an OrcaVue-branded device that rotates a camera 45 degrees or more around a subject for the purposes of recording the subject.
· “OrcaVue’s Indemnified Parties” is defined in Section 5.8.
· "Order" is defined in Section 1.2.
· “Party” and “Parties” are defined in Section 1.1.
· “Permissible Use” is defined in Section 3.1.
· “Proprietary Rights” is defined in Section 3.2.
· “Rental Period” is defined in Section 2.7.
· “Scheduled Delivery Date” is defined in Section 2.6.
· “Services” is defined in the Preamble to these Terms and Conditions.
· “Software” means the proprietary software of OrcaVue and its licensors that includes customized web and mobile applications, as well as the related server-based platform, and any services, instructions, user’s guides, or other items provided to you by OrcaVue under these Terms and Conditions.
· “Taxes” is defined in Section 5.9.
· “Terms and Conditions” refers to these Terms and Conditions for Purchase, Rental, License or Services between OrcaVue and the Customer.
· “User” means an individual or entity who uses the Software or a Device that utilizes the Software to produce video or other media.
· “Website” is defined in Section 1.3.
5.2 Termination Due to Customer’s Breach
You will be in breach of these Terms and Conditions, allowing OrcaVue to terminate these Terms and Conditions (and any obligations it has toward you or rights you may have had under the Terms and Conditions) with thirty (30) days’ written notice, if you fail to comply with any term or condition, or perform any obligation, herein, including without limitation failing to timely pay any amount due to OrcaVue under these Terms and Conditions or any other agreement between you and OrcaVue. Customer agrees to pay all costs and attorneys’ fees for collection, appeal, or execution of a judgment in this regard.
In addition, upon the occurrence of any of the following events, either Party may terminate these Terms and Conditions “for cause” by sending thirty (30) days’ written notice to the other Party:
(a) if the other Party ceases to do business or otherwise terminates its business operations, except as a result of or in connection with an assignment permitted herein;
(b) if the other Party fails to promptly secure or renew any license, registration, permit, authorization or approval for the conduct of its business in the manner contemplated by these Terms and Conditions or if any such license, registration, permit, authorization or approval is revoked or suspended, provided that the failing Party may cure the failure within the 30-day notice period such that the issuance or renewal of the missing license or other document will cancel the termination notice;
(c) if the other Party materially breaches any material provision of these Terms and Conditions, provided that the breaching Party may cure the breach to the other Party’s reasonable satisfaction within the 30-day notice period, thereby cancelling the termination notice;
(d) if, upon a change in control of either Party (e.g., the sale of 51% or more of the company), the new controlling party elects to terminate the relationship, and provides at least six months’ notice to the other Party, and agrees to relieve the other party of any payments due beyond the elected date of termination or as earlier by mutual agreement; or
Further, a Party may terminate these Terms and Conditions effective immediately and without notice if the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 90 days).
OrcaVue or its agents will have the right to enter upon Customer’s premises and take possession of and remove the Equipment upon: (i) expiration of the Rental Period and non-return of the Equipment within 24 hours thereafter; (ii) breach by Customer of any provision of these Terms and Conditions; (iii) the filing of a petition in bankruptcy by or against Customer; (iv) the appointment of a receiver or similar proceeding against Customer; (v) the imposition of any lien or encumbrance upon the Equipment; or (vi) the existence of any circumstance in which OrcaVue reasonably believes its exclusive title to or ability to recover the Equipment may be at risk. OrcaVue may execute such possession and removal without liability and without prejudice to its right to pursue any other remedies (including recovery of rent due for the remaining Rental Period). OrcaVue will have the right, and Customer will take all necessary actions to allow OrcaVue to enter any location where the Equipment is being held or is in use, for the purpose of inspecting the Equipment or exercising OrcaVue’s rights hereunder. Failure by OrcaVue to enforce any remedy or make any election in a timely manner will not be deemed a waiver of any of its rights or remedies hereunder or under applicable law.
5.3 Effect of Termination
In addition to any other right or obligation set forth in these Terms and Conditions, which, by its express terms, survives termination hereof, the Parties hereby agree that any termination shall not relieve either Party from rights and obligations that have accrued before the termination, including but not limited to payment of any amounts due hereunder, and shall have no bearing on each Party’s other customer contracts in effect.
OrcaVue represents and warrants that:
(a) it is a corporation duly organized in the State of Delaware and is validly existing and in good standing under the laws of Delaware. It has the requisite power and authority to own and operate its assets and to carry on its business as now conducted, and it has taken all corporate action necessary to enter into these Terms and Conditions. This Agreement does not conflict with or violate any of OrcaVue’s other agreements or obligations, and none of the terms and conditions hereunder, if performed in keeping with these Terms and Conditions, shall cause OrcaVue to be in breach of any of its other agreements or obligations; and
(b) it possesses any license, registration, permit, authorization or approval for the conduct of its business in the manner contemplated by these Terms and Conditions; and
(c) it owns or has the rights to license all intellectual property being sold, rented or licensed hereunder, and that no third party has a reasonable claim for challenging a License created herein on the grounds that the Equipment, Software or Services infringe upon intellectual property belonging to that third party.
OrcaVue makes no express or implied warranty or representation that the Software and related information are accurate or up-to-date or that they are suitable for any particular purpose, and OrcaVue is not liable for errors contained in the Software. OrcaVue does not warrant or guarantee the Equipment if you use it improperly, including but not limited to using the Software with a Device other than the OrcaVue 360° Camera Rig. OrcaVue will not be responsible for any Losses that are caused by improper use. If we become aware that you are using the Equipment improperly or violating any part of these Terms and Conditions, we have the right to terminate your rental or your License.
Except as may be otherwise provided herein, OrcaVue is providing the Equipment and Services on an “as is” and “as available” basis, and while OrcaVue does not assert that the Equipment and Services will be perfect and error-free, when problems arise that impair your use of the Software, please report them to us immediately. Please understand that there will be times (usually overnight or on weekends) when we have to take our system off-line in order to do maintenance on it, but we will let you know at least 72 hours in advance of this happening.
Apart from our promises and guarantees in these Terms and Conditions, we are not liable, and you assume the risk, for results or Losses arising or incurred through, from, or as a result of, your use of the Equipment or Services, any Captured Data taken and viewed when the Equipment or Services is used under your password, any information you or your Users obtain from using the Equipment or Services or any failure to access the Equipment or Services at a particular time. OrcaVue uses commercially reasonable security measures to protect Users’ information, but it does not guarantee the prevention of the loss or alteration of, or improper access to, Users’ information or computer system. OrcaVue is not responsible for transmission errors, corruption of data during transmission, lack of available onsite connectivity, slow data transmission speeds due to large crowds at events, or the security of Users’ information carried over any telecommunications or data communications facilities.
OrcaVue will not be responsible for any replacement of any data that is lost or damaged, or any down time, as a result of failure by Customer to provide adequate security to the Equipment or Software, including protection from elements such as heat, snow, rain and wind.
Except as provided herein, it shall be the responsibility of Customer to ensure that the hardware and system software (including but not limited to any interfaces) it uses are compatible with the Equipment, Software or Service provided by OrcaVue. OrcaVue will not be responsible for any expenditure that may be incurred by Customer in modifying its hardware and system software to enable it to receive the Equipment, Software or Service.
For Software only: OrcaVue shall use all commercially reasonable efforts to ensure that the Software is accurate and up-to-date; however, OrcaVue makes no express or implied warranty or representation that the Software and related information are accurate or up-to-date or that they are suitable for any particular purpose, and will not be liable for errors or omissions contained therein or their consequences. OrcaVue does not warrant that its Software will be uninterrupted or error free. However, OrcaVue will use commercially reasonable efforts to cause the Software to be available for Licensee’s access and use 24 hours per day, 7 days per week, 365 days per year, subject to identified maintenance windows – which shall occur during non-peak usage hours.
Applicable to all Purchases, Rentals and Licenses:
DISCLAIMER OF WARRANTIES: EXCEPT FOR THE LIMITED WARRANTY SET OUT IN THESE TERMS AND CONDITIONS, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, ORCAVUE HEREBY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, OF ANY TYPE WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY REPRESENTATION OR WARRANTY AS TO THE DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL, EQUIPMENT OR WORKMANSHIP IN OR OF ANY EQUIPMENT. ORCAVUE FURTHER DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE EQUIPMENT IS COMPATIBLE WITH ANY NON-ORCAVUE GOODS OR EQUIPMENT USED IN CONNECTION WITH THE EQUIPMENT.
5.6 Warranties of Customer
Customer warrants that it and its Authorized Users or Guests:
(a) shall not attempt to reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Software or any software provided or made available by OrcaVue in conjunction with the Software, including system peripherals or camera firmware;
(b) agree not to redirect Captured Data to any other platform outside of OrcaVue without the express written consent of OrcaVue;
(c) agree to be responsible for all use of their accounts and for maintaining the confidentiality of all passwords and other system access information provided by OrcaVue, and further agree that the sharing with third parties of passwords, account numbers or information is prohibited that do not have commonly held rights to a specific grant of a license to use Software;
(d) agree to assume responsibility and liability for ensuring that their hardware and system software (including but not limited to any interfaces) are compatible with the Software provided by OrcaVue, and Users waive any claims against OrcaVue arising directly or indirectly from Users’ failure to so ensure;
(e) agree to use all reasonable efforts to keep the Equipment or Software in a secure environment and to prevent unauthorized access thereto, and agree that OrcaVue will not be responsible for replacement of any data that is lost or damaged, or any downtime, that results from a failure by the User to provide adequate security; and
(f) agree that any breach of this Section 5.6 will cause substantial and irreparable damages, and, therefore, in the event of any such breach, in addition to other remedies which may be available, OrcaVue shall have the right to seek specific performance and other injunctive and equitable relief and to have all costs and expenses, including reasonable attorney's fees incurred in connection therewith, paid by the violating Customer.
(a) For both Parties:
The Parties agree that any liability of a Party under or related to these Terms and Conditions, regardless of the form of action, shall not exceed the price paid by Licensee hereunder.
In no event will either Party or their respective Agents, be liable for any Losses arising from or related to these Terms and Conditions that are attributable to any of the following, under any legal or equitable theory of liability:
• costs to procure substitute products or services;
• loss of revenue, profits, contracts, investments or business;
• loss of business reputation or goodwill;
• loss of data or software programs;
• loss of anticipated savings;
• interruption in the use or availability of data;
• stoppage to other work;
• having to get substitute products or services;
• indirect or secondary consequences of a Party’s (or its Agents’) act or omission, regardless of whether such Loss was reasonably foreseeable or actually foreseen; or
• any special, indirect, consequential, punitive, exemplary or incidental damages.
This limitation shall apply even if either Party has been advised of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy herein provided.
(b) For OrcaVue:
SUBJECT TO THE LIMITED WARRANTY IN THESE TERMS AND CONDITIONS, THE TOTAL LIABILITY OF ORCAVUE, IF ANY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE OR RENTAL PRICE OR LICENSING FEE WITH RESPECT TO WHICH SUCH CLAIM IS MADE.
THIS LIMITATION WILL NOT AFFECT CUSTOMER’S RIGHT TO SEEK APPROPRIATE RELIEF ARISING FROM OR INCIDENT TO ANY DEATH, PERSONAL INJURY OR PROPERTY DAMAGE CONNECTED TO ORCAVUE’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR STRICT LIABILITY IMPOSED BY LAW.
Customer hereby indemnifies and holds harmless OrcaVue and its owners, officers, directors, employees and agents (collectively, "OrcaVue’s Indemnified Parties") from and against any and all costs, liability, loss, expense, damages, injury, claim, suit, action or proceeding (including reasonable attorneys' fees) (collectively, "Losses"), arising out of the use, possession, and/or operation of the Equipment during the time beginning with Delivery to Customer and ending with its OrcaVue’s receipt of the returned Equipment, including without limitation: injury, death, Equipment damage, fines or penalties resulting from the violation by Customer of any applicable law.
OrcaVue hereby indemnifies and holds harmless Customer and its owners, officers, directors, employees and agents (collectively, "Customer’s Indemnified Parties") from and against any Losses arising out of a third party’s allegation against any of Customer’s Indemnified Parties alleging that OrcaVue has infringed or misappropriated any intellectual property right, including copyright, trade secret and trademark rights.
The indemnification obligations in the preceding two paragraphs shall be subject to the indemnifying party: (a) receiving prompt written notice of the existence of any Action; (b) being able to, at its option, control the defense of such Action; (c) permitting the Indemnified Party to participate in the defense of any Action; and (d) receiving full cooperation of the Indemnified Party in the defense thereof.
Licensee further agrees to take all necessary precautions to prevent injury to any persons or damage to property (including OrcaVue employees, agents, and property) during the term of these Terms and Conditions and shall indemnify and hold harmless OrcaVue and its Agents and Affiliates against any Loss and injury to a person or property (including death) resulting in any way from any act, omission or negligence of the Licensee in its performance (or failure to perform) under these Terms and Conditions, excepting only those Losses which are due solely and directly to OrcaVue’s gross negligence. Should OrcaVue permit Licensee to use any of OrcaVue’s equipment, tools or facilities during the term of these Terms and Conditions, Licensee shall indemnify and hold harmless OrcaVue and its officers, agents, directors, and employees from and against any Loss or injury to person or property (including death) arising out of the use of any such equipment, tools, or facilities, excepting only those Losses which are caused solely by OrcaVue or are directly related solely to OrcaVue’s negligence.
5.9 Taxes. If your state allow it, the purchase or rental price or Licensing Fee charged to you by OrcaVue will include all taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). If your state does not allow OrcaVue to include Taxes in your price or fee, you agree that you are responsible for paying all Taxes associated with your purchase, rental or licensing. If OrcaVue has the legal obligation to pay Taxes for which you are responsible under this paragraph, you agree to pay those amounts as invoiced within ninety (90) days of the date the Taxes were originally due. OrcaVue is not responsible for any late fees or penalties accrued by Customer for failure to pay Taxes or for underpayment of Taxes in a timely manner.
In connection with these Terms and Conditions, Customer may receive from OrcaVue confidential or proprietary information not known to the public, which shall be marked “CONFIDENTIAL” (“Confidential Information”). Customer agrees to maintain the confidentiality of such materials and not to disclose or use such Confidential Information except in performing its obligations under these Terms and Conditions.
Any notice provided for by these Terms and Conditions shall be made in writing and will be deemed to be delivered: (1) when either by actual delivery of the notice into the hands of the Party to whom the notice is addressed; (2) by receipt of facsimile transmission of the Party entitled to notice; (3) when actually delivered by private express mail company that delivers to the receiving Party's place of business; (4) three days after deposit in the U.S. Postal Service with first class postage prepaid; or (5) by email, which will only be considered delivered if the receiving Party returns the complete contents of the notice, with acknowledgement of receipt, via a return email. Any required notices hereunder (including notice of address change) shall be given in writing:
To OrcaVue: To Customer:
OrcaVue At the address submitted
7411 Livingston Road to OrcaVue by Customer
Oxon Hill, MD 20745
5.16 Modification or Amendment
No modification or amendment to these Terms and Conditions shall be effective unless consented to in writing by the Parties by means of signatures of their respective authorized representatives.
No waiver of any provision of these Terms and Conditions shall be effective unless made in writing, nor shall it constitute a waiver of any right hereunder or any subsequent breach of the same or any other provision of these Terms and Conditions. A Party’s failure to enforce any term of these Terms and Conditions shall not be deemed a waiver of future enforcement of that or any other term.
If any provisions of these Terms and Conditions or any portions thereof are held to be invalid, illegal or unenforceable, such provision will be severed and the other provisions of these Terms and Conditions shall remain in full force and effect, and if any provisions of these Terms and Conditions or any portions thereof are inapplicable to any person or circumstance, such provisions or portions thereof shall nevertheless remain applicable to all other persons and circumstances.
5.19 Force Majeure
OrcaVue and Customer will be excused from any default in their obligations hereunder, other than the payment of money due, resulting from any act or event beyond their reasonable control or responsibility, including, but not limited to, acts of God, accident, fire, flood, storm, riot, war, sabotage, explosion, strike, lockout, labor disturbance, national defense requirement, governmental action, law ordinance, rule or regulation, whether valid or invalid, inability to obtain or curtailment of electricity or other types of energy, raw material, labor, component products or transportation, failure of normal sources of supply, or any similar or different contingency that would make performance or timely performance commercially impracticable. The Party relying on any of these acts or events of force majeure must give the other notice thereof promptly after it becomes known to that Party. If any of these acts or events of force majeure exceed sixty (60) continuous or cumulative days within a quarter, then either Party may, as its sole remedy, cancel outstanding orders to the extent not previously fulfilled by giving written notice. Neither Party will be liable for damages resulting from such cancellation.
Paragraph headings in these Terms and Conditions are for reference only; they shall not be used in interpreting these Terms and Conditions or any of its provisions or be deemed to limit or otherwise affect any of the provisions hereof. Where a reference is made to a Section, such reference shall be to a Section of these Terms and Conditions. Whenever the words “include,” “includes,” or “including” are used in these Terms and Conditions, they shall be deemed to be followed by the words “without limitation,” and the words “and” and “or” shall each include the other. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. The words “hereof,” “herein,” “hereby,” “hereto,” and “hereunder” and words of similar import shall refer to these Terms and Conditions as a whole and not to any particular provision of these Terms and Conditions. References to “these Terms and Conditions” shall include any and all of a Customer’s Orders and their related documents, invoices or account statements,
5.21 Entire Agreement
These Terms and Conditions, along with any and all purchase or rental Orders, Equipment and Software specifications, instructions and accompanying documents, contains all of the agreements and other undertakings among the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and other undertakings among the Parties with