Terms and conditions
This InOrbit Customer Agreement (the “Agreement”) is between you and InOrbit Technologies Pty Ltd (ABN 53 634 324 342) (“Licensor”).
The Product is a managed software service hosted in a ‘cloud-style’ online environment in conjunction with, and directly interacting with Customer’s business applications via one or more APIs.
The Product functions to enable certain functionality (Services), which the Customer, and individual users (with authority of the Customer) may separately enable on a case by case basis from the menu within the Product.
If you are an individual using the Services for your own purposes:
- all references to “Customer” are to you and
- you represent and warrant that you are at least 18 years of age or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement.
If you are using the Services on behalf of an entity or organization that you represent:
- all references to “Customer” are to that entity or organization and
- you represent and warrant that you are at least 18 years of age or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Customer.
- As a Customer that is an entity or organization, Customer will designate an initial Service administrator for its account on the Services. The initial Service administrator will create and control Customer’s Services.
THIS AGREEMENT BECOMES BINDING AND EFFECTIVE UPON ACCESSING, USING OR UPLOADING OR DOWNLOADING ANY INFORMATION OR MATERIALS TO OR FROM THE PRODUCT, OR BY INDICATING YOUR ASSENT TO THESE TERMS BY CREATING AN ACCOUNT, CLICKING “SIGN UP AND TRY FREE” OR ANY SIMILAR MECHANISM, YOU ARE AGREEING TO THE THESE TERMS.
Licensor grants the Customer and the Customer accepts a personal, non-transferable, non-exclusive license to use the product subject to the terms of this Agreement.
2. Obligations of Licensor
2.1 Accessing the Product
Licensor will (at the Licensor’s cost) enable access to the Product by the Customer on and from the Start Date described in the Agreement Details, or at a time otherwise agreed in writing by the parties
Licensor will provide the Customer with such technical and other assistance as Licensor considers reasonably necessary to properly install and operate the Product.
3. Obligations of the Customer
3.1 Use of Product
- All use and testing of the Product is at the Customer’s risk and any tests undertaken by the Customer must be in accordance with or consistent with the Documentation.
- If the consent of a third party is required in order for any data to be processed by the Product or in connection with the Services then the Customer is solely and exclusively responsible to obtain that consent from the third party.
- The Customer is primarily responsible for responding to a claim or query from a customer or employee of Customer (or any third party, including a regulatory authority) with respect to the specific content, quality, meaning or message in any transaction processed by the Product and Customer accepts that Licensor will refer any such claim or query to Customer.
- Unless otherwise permitted by law, the Customer must not:
- resell, reframe, distribute or on-sell the Product;
- include the Product in any service bureau or outsourcing or managed service offering;
- transfer, sub-license or assign its rights under this Agreement to any third party unless Licensor gives its prior written consent (not to be unreasonably withheld);
- modify or adapt or create derivative works of the functionality of the product;
- reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Product;
- build a competitive service; or
- copy any features, functions or graphics of the Product.
- Customer must not:
- use the Product in any manner that could disable, overburden, damage, or impair the Product or interfere with any other user’s use of the Product;
- use any robot, spider or other automatic device, process or means to access the Product for any purpose, including monitoring or copying any of the material on the Product;
- use any manual process to monitor or copy any of the material on the Product or for any other unauthorized purpose without Licensor’s prior written consent;
- use any device, software or routine that interferes with the proper working of the Product;
- introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
- attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Product or any server, computer or database connected to the Product;
- attack the Product via a denial-of-service attack or a distributed denial-of-service attack; or
- otherwise attempt to interfere with the proper working of the Product.
3.2 Modifications to Product.
- The Customer agrees to promptly implement any Modification provided by Licensor or implement any changes to the use of the Product instructed by Licensor. The Customer understands that these Modifications and changes may override previous Modifications or instructions and could include changes to the system and its operating procedures which may prevent a Customer Application from operating on or in conjunction with the Product.
- Except as required under clause 3.3a) or at the written direction of Licensor, the Customer must not modify the Product.
3.3 Responsibility for Security of Access and Logins
The Customer acknowledges and agrees that it is responsible for the following:
- nominating which of its personnel will be authorized to log into the Product and to receive outputs of the Services;
- Using reasonable efforts to resolve technical issues to enable the Services;
- revoking or adjusting the access of any personnel; and
- providing adequate security for the computer network and Customer’s account login details in conjunction with which the Product is used.
3.4 Accessing Customer Applications
Customer acknowledges that Product cannot provide the Services unless given access to Customer Applications in a form which is technically compatible with the Product. It is Customer’s responsibility to obtain any necessary permissions from third parties to enable the Product to access Customer Applications.
4. Ownership of Product and Intellectual Property rights (IPR)
4.1 Ownership of Product
The Customer acknowledges that the Product is made available and accessible to the Customer and that Licensor retains ownership of all right, title and interest to the Product, the Product design, the Documentation, Modifications, Content and the IPR in the Product, Documentation and Modifications and the Content.
The Customer agrees not to do any of the following or authorize or assist any person to do any of the following:
- copy, modify, or reverse engineer, make an adaptation of, communicate to the public or otherwise disclose the Product (including Content made accessible in the Product) or copy, modify, or reverse engineer, make an adaptation of, communicate to the public or otherwise disclose the IPR in the Product, Content or Software;
- make derivative works based upon the Product;
- use the Product or the Documentation or the Content to develop any products, services or software without Licensor’s prior written approval (which approval may be given in Licensor’s absolute discretion and subject to any conditions which Licensor wishes to impose); and
- sell, license, rent, or transfer the Product or otherwise make the Product accessible to any third party.
- The Customer indemnifies and will keep indemnified Licensor in respect of all loss, expenses, costs and damages that Licensor suffers or incurs as a consequence of or arising from the Customer’s failure to comply with this clause.
Licensor grants the Customer and the Customer accepts a personal, non-transferable, non-exclusive license to access and use the Product subject to the terms of this agreement and the following restrictions:
- the Product may only be used by specific individuals who are employees or agents of Customer and who are subject to an obligation of confidentiality; and
- the number of specific individuals who are granted access to the Product must not exceed the number described in the Agreement Details.
4.4 Assignment of IPR in Modification
The Customer assigns to the Licensor, the Customer’s entire right, title and interest in the IPR in any Modifications to the Product which the Customer may identify or propose.
5. Confidentiality obligations
Clauses 5.2 to 5.8 inclusive will apply.
5.2 Receiving Party Acknowledgement
The receiving party acknowledges that:
- the Confidential Information disclosed to it by the disclosing party is the sole and valuable property of the disclosing party;
- any Confidential Information received by the receiving party from the disclosing party prior to the date of this Agreement has been treated as being confidential and confirms that it has not been disclosed to any third party without the disclosing party’s consent;
- it must have no right, claim or interest in respect of the Confidential Information of the disclosing party;
- any IPR or interest in respect of the Confidential Information disclosed to it by the disclosing party is vested in the disclosing party; and
- any unauthorized disclosure or use of the Confidential Information disclosed to it by the disclosing party could give rise to considerable damage to the disclosing party.
Each party undertakes in relation to the Confidential Information of the other:
- to keep the Confidential Information confidential, not to disclose it to third parties without the other party’s written consent and to use the Confidential Information exclusively for the Express Purpose, and for no other purpose;
- not to copy, reproduce or reduce to writing any part of the Confidential Information except as may be reasonably necessary for the Express Purpose without the prior written approval of the other party and that any such copies or reductions to writing will be the property of the other party and will also be Confidential Information;
- not to use, reproduce, transform or store any of the Confidential Information in an externally accessible computer or electronic information retrieval system or transmit it in any form or by any means whatsoever outside of its usual place of business, except to the extent required by applicable record retention laws;
- take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information and (without limiting the foregoing), the receiving party must take at least those measures that it takes to protect its own most highly confidential information; and
- not otherwise use or attempt to use any of the Confidential Information for its own advantage or gain, directly or indirectly.
5.4 Permitted Disclosure
- Notwithstanding any other provision of this Agreement the receiving party may disclose the Confidential Information disclosed to it by the disclosing party to its officers and employees who have a specific need to know the Confidential Information for the Express Purpose, provided that any such officers and employees have been made aware of the terms upon which the Confidential Information has been disclosed to the receiving party and have entered into a confidentiality Agreement with the receiving party on terms consistent with the terms and conditions of this Agreement. The receiving party will remain liable to the disclosing party for any unauthorized disclosure of the Confidential Information by its officers and employees.
- If the receiving party is, or may be, required by law or Court order to disclose any of the Confidential Information of the disclosing party, it will not be a breach of the receiving party’s obligations under this Agreement to do so provided that the receiving party immediately notify the disclosing party in writing of the requirement and that it restrict the disclosure to that information which it is required by law to disclose. The receiving party must, as directed by the disclosing party:
- assist or permit the disclosing party to oppose or restrict disclosure; and
- to the extent practicable, make disclosure on terms which will preserve the confidentiality of the Confidential Information.
5.5 Return of Confidential Information
The receiving party must, upon receipt of written notice by the disclosing party from time to time requiring the return or destruction of any of the Confidential Information of the disclosing party in the possession, custody or control of the receiving party:
- immediately return to the disclosing party (or as the disclosing party may otherwise direct) all Confidential Information of the disclosing party including all documentation and materials in its possession or under its control which in any way relate to or embody the Confidential Information of the disclosing party together with any and all copies or extracts of such Confidential Information or related documentation, whether in a physical form or recorded or stored by any electronic means or otherwise except where such Confidential Information or related documentation is stored on the back-up tapes of the receiving party; and
- at the same time certify in writing to the disclosing party that it has returned all such Confidential Information including copies thereof and that it no longer has any part of such Confidential Information in its possession, custody or control.
The receiving party must notify the disclosing party immediately if it becomes aware of a suspected or actual breach of this clause 5 and take all reasonable steps, at its own expense, required to prevent or stop the suspected or actual breach.
The receiving party indemnifies the disclosing party against all loss or damage whatsoever that the disclosing party may sustain or incur as a result, whether directly or indirectly, of any breach by the receiving party or its officers or employees of their Confidentiality Obligations.
The receiving party acknowledges and agrees that:
- damages may not be an adequate remedy for any breach of the provisions of this clause 5; and
- the disclosing party will be entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach by the receiving party, in addition to any other remedies available to the disclosing party at law or in equity.
6. Privacy obligations
7. Pricing and fees
7.1 Customer agrees to pay all fees charged by Licensor for Customer use of Services in accordance with this Agreement and applicable Service(s) and Service Plan(s) (collectively, “Fees”).
- prices for Services are set forth on the Pricing Page; and
- fees must be paid in U.S. dollars and, subject to Section 7.2 and 7.3, within 30 days of invoice.
7.2. Except in the event of a good faith dispute under this Section 7.2, if Customer fails to make payment when due, without limiting Licensor other rights and remedies:
- Licensor may charge interest on the past due amount at a rate of 2% per month or, if lower, the highest rate permitted under Applicable Law;
- customer shall reimburse Licensor for all reasonable costs incurred by Licensor in collecting any late payments or interest, including attorneys’ fees; and if such failure continues, Licensor may suspend Customer’s and its Authorized Users’ access to the Services until such amounts are paid in full.
- Customer must assert any dispute with regard to Fees in writing within 10 days of receipt of the invoice giving rise to the dispute. Licensor will not exercise its suspension or termination rights or apply interest on late Fees if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
7.3. If Customer is paying Fees using a credit card or any digital payment method supported by Licensor, Customer authorizes Licensor to charge Customer’s account for the Services using that payment method.
- Customer must keep all information in its billing account current to ensure that all Fees are charged to the appropriate account and are timely paid.
- If Customer notifies Licensor to stop using a previously designated payment method and fails to designate an alternative, Licensor may immediately suspend use and access to the Services.
- Any notice from Customer changing its billing account will not affect charges Licensor submits to Customer’s billing account before Licensor reasonably can act on Customer’s request.
- Licensor uses a third-party intermediary to manage credit card processing, and this intermediary is not permitted to use Customer’s credit card information except in connection with Customer’s authorized purchases.
- Notice (including email) from Licensor’s third-party credit card processor declining Customer’s credit card or otherwise relating to Customer’s account will be deemed valid notice from Licensor.
8.1 Mutual Rights of Termination
A party may terminate this Agreement by written notice to the other party, effective immediately if the other party materially breaches any obligations under this Agreement and the breach is not rectified within seven days of notice of the breach.
8.2 Licensor’s Rights of Termination
Without limitation to clause 7.1, this Agreement may be terminated immediately by Licensor if the Customer breaches a material term of the License.
8.3 Consequences of expiry or Termination
- Upon expiry or termination of this Agreement, Licensor may terminate Customer’s ability to access the Product and the Customer must immediately cease accessing and using the Product. The Customer will not be required to cease accessing and using the Product if the parties have agreed and entered into a subscription licence for the Product as provided in clause 3.5.
- Either Clause 5 and clauses 3.2(b), 3.4, 4.1, 4.2, 4.4, 8 and 10 and any other clause which by its nature is intended to survive the expiry or termination of this Agreement will survive the expiry or termination of this Agreement.
9.1 Exclusions of Warranties and Implied Terms
The Product is provided “as is” without warranty of any kind. To the extent permitted under applicable laws, Licensor disclaims all warranties, whether express, implied or statutory, including without limitation, any implied warranty of non-infringement of third party rights, merchantability or fitness for any particular purpose. Licensor does not warrant that the functionality of the Product will meet Customer’s requirements, that the Product will operate properly in combination with other content, software plug-ins, APIs or protocols, or that the operation of the Product will be uninterrupted or error-free, or that all errors or defects in the Product will corrected. Furthermore, Licensor does not warrant or make any representations regarding use or the results of the use of the Product (including support, if any) in terms of correctness, accuracy, reliability, or otherwise.
9.2 Critical Applications
The Product is not designed or intended to be fail-safe, or for use in any application requiring fail-safe performance, such as in life-support or safety devices or medical devices, nuclear facilities or any other applications that could lead to death, personal injury or severe property or environmental damage (individually and collectively, “critical applications”). The Customer agrees not to use the Product for any of critical applications or other situations or applications specified in this clause. To the maximum extent permitted by applicable law, the Customer assumes the sole risk and liability of any use of the Product in critical applications and or other situations or applications specified in this clause.
9.3 Limitation of Liability
Despite any other provision of this Agreement, to the extent permitted by applicable law, all liability of Licensor under this Agreement including any claim for loss, damages, costs or expenses arising from breach of contract, in tort (including negligence) or otherwise is limited in the aggregate to the amount the Customer paid to Licensor for the licence or AU$100, whichever is greater. Licensor’s liability under this clause is reduced proportionately to the extent that the Customer caused or contributed to the liability.
Customer agrees to indemnify, defend and hold harmless Licensor and its officers, directors, employees, and agents from and against all losses, expenses, damages and costs, including reasonable solicitor’s fees, resulting from:
- breach of this Agreement by Customer; or
- any activity conducted by Customer or by a user accessing or using the Product while it is in the possession or control of Customer;
- a claim made against Licensor arising from Customer’s failure to comply with relevant Workplace Health legislation and any other applicable legislation (including applicable data protection and privacy laws) when Customer uses the Product.
9.5 Exclusion of Indirect, Special and Consequential Loss
Except with respect to claims regarding infringement of Licensor’s IPR or breach of confidentiality under the terms of this Agreement, neither the Customer nor Licensor (including any of Licensor’s directors, employees, agents, subcontractors and suppliers) is liable to the other party for:
- any special, consequential, exemplary, incidental, or indirect damages; or
- loss of profits, revenues, data, use or opportunity, even if advised of the possibility of such loss. Neither party may bring any claim under or in relation to this Agreement more than 12 months after the cause of action accrues.
10.1 Relationship of the Parties
Nothing in this Agreement creates a joint venture, partnership, or the relationship of principal and agent, or employee and employer between the parties.
Neither party will, without the prior written consent of the other party, transfer or assign any of its rights or obligations under this Agreement.
In the event of the invalidity, illegality or unenforceability of any part of provision of this Agreement, that invalidity, illegality or unenforceability will not affect the remaining provisions of this Agreement and the part or provision being invalid, illegal or unenforceable will be severed from the remaining provisions of this document.
10.4 No Waiver
Failure or omission by a party at any time to enforce or require strict or timely compliance with any provision of this Agreement will not affect or impair that provision in any way or the rights of that party to avail itself of the remedies it may have in respect of any breach of such provision.
10.5 Entire Agreement
This Agreement constitutes the whole Agreement and understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior discussions between the parties and all representations, warranties or undertakings with respect to the subject matter of this Agreement except as expressly incorporated in this Agreement. This Agreement may only be varied or replaced by an agreement in writing executed by the parties.
10.6 Governing Law and Jurisdiction
This Agreement will be subject to the laws of the State of New South Wales, Australia and the parties hereby submit to the non‑exclusive jurisdiction of the courts of that State. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
11. Service plans, Automatic renewals and Terminations
11.1 Service Plans
- By signing up for an account for the Services you automatically start your Service. The account you use to sign-up will be deemed to be your workspace administrator account.
- Paid Plans are offered in packages based, in part, on the number of Authorized Users and other features and capabilities. Customer may add Authorized Users to their Paid Plan by accessing the billing management settings for Customer’s account via the Services. Subscription fees for Paid Plans are based on annual or monthly periods that begin on the start date and each annual or monthly anniversary of the start date.
- Customer may upgrade, change and otherwise manage its Service Plan subscription by accessing the billing management settings for Customer’s account via the Services.
11.2 Automatic Renewal
Unless a Customer cancels a Paid Plan in accordance with Section 11.3 below, each Service will automatically renew for additional periods of the same duration as the expiring Service Term (each, a “Renewal Service Term”). Customer authorizes Licensor to automatically charge Customer for the applicable fees on or after the start date of each Renewal Service Term unless the Service has been terminated or canceled in accordance with this Agreement. If Customer wishes to reduce the number of Authorized Users or the applicable Service Plan, it must do so before the start of the next Renewal Service Term. Licensor reserves the right to increase fees for a Renewal Service Term, with notice to Customer. Customer expressly authorizes Licensor to charge applicable fees for Customer’s Service Plan on a recurring basis, in accordance with Section 7.3 above.
11.3 Termination of Service Plan
- Either Party may opt-out of renewal for Enterprise Paid Plans by providing the other Party written notice of its intention not to renew for an Enterprise Paid Plan at least 30 days prior to the current expiration date.
- Without limiting Section 11.3(a) above, for Paid Plans that are not Enterprise Paid Plans, Customers may terminate their Paid Plan at any time by following instructions in their billing management settings. Please see our Purchasing and Billing documentation for more details on how to terminate your Service Plan subscription.
Customer shall be responsible for all sales, service, value-added, use, excise, consumption and any other Taxes on amounts payable by Customer under the Orders and this Agreement (other than any Taxes on Licensor’s income, revenues, gross receipts, personnel or assets). Without limiting the foregoing, if Customer is required to deduct or withhold any Taxes under Applicable Laws outside the United States, Customer shall remit such Taxes in accordance with those Applicable Laws and all Fees payable shall be increased so that Licensor receives an amount equal to the sum it would have received had no withholding or deduction been made.
13. Publicity and marketing
Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that Licensor may include Customer’s name and logo in its lists of Licensor customers, its public website and other promotional material.
14. Force Majeure
Except for a Party’s obligation to pay Fees, neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, pandemics, epidemics, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency (each of the foregoing, a “Force Majeure Event”), in each case, provided the event is outside the reasonable control of the affected Party, the affected Party provides prompt notice to the other Party, stating the period of time the occurrence is expected to continue, and the affected Party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15. Changes to terms and policy
Licensor may modify this Agreement at any time by posting a revised version at /support/legal, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if an Order specifies a fixed term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next Renewal Order Term. In either case, if Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew, including canceling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
16. Hosting and providers
Licensor uses third-party hosting providers, other service providers and Licensor Affiliates to support the provision of the Services in the ordinary course of its business, i.e., not specifically for Customer (collectively, “Ordinary Course Providers”).
Licensor reserves the right to engage and substitute Ordinary Course Providers as it deems appropriate, but shall:
- remain responsible to Customer for the provision of the Services and
- be liable for the actions and omissions of its Ordinary Course Providers undertaken in connection with Licensor’s performance of this Agreement to the same extent Licensor would be liable if performing the Services directly. In no event shall providers of Customer Components be deemed Ordinary Course Providers for any purpose under this Agreement.
In this Agreement unless the context otherwise requires terms defined in the Agreement Details will have the meaning ascribed to that term in the Agreement Details and:
Licensormeans InOrbit Technology Pty Ltd(“InOrbit”)
Customer Application means any application consisting of software developed by or used by the Customer that operates on or in conjunction with the Product and which provides functionality separate from the Product.
Confidential Information:10.1 Any and all non-public information which is now or at any time before or after the date of this Agreement disclosed to, or otherwise received by, the other party (the receiving party) pursuant to this Agreement concerning the disclosing party, or its business, products or services that has been identified as confidential or proprietary or would be understood to be confidential or proprietary by a reasonable person, whether orally or in writing, including without limitation any information or analysis derived from such Confidential excluding information that:
- was, is or has become lawfully available to the public otherwise than through breach of this Agreement or any other obligation of confidence; or
- was known to and at the free disposal of the receiving party prior to the date of disclosure of such Confidential Information to it; or
- was disclosed to the receiving party by a third party having the right to make such disclosure, and in relation to Licensor includes the Documentation.
Content means text, images, sounds, special effects (including video and audio and any other format) which conveys information or style and including any user interface and data structure for Software.
Documentation means the user manual, product description and other documentation describing the functionality and use of the Product supplied via any media in conjunction with the Product to the Customer at any time.
Intellectual Property Rights or IPR means all patent, copyright, trade marks (registered and unregistered), designs, circuit layouts, know-how and other confidential information and rights in relation thereto, and all other intellectual property rights and any other rights of a like nature subsisting or conferred by law in force in any part of the world.
Modification means any modification or improvement to the Product including modifications or improvements to the Software and the Content but excludes any Customer Application.
Pricing pagemeans the publicly available web page(s) where Licensor publishes its list prices for Services, currently available at /pricing.
Servicemeans the hosted services to which Customer subscribes through, or otherwise uses following, the Service that are made available by Licensor, including without limitation any free trials of the Services. Licensor may make such changes to the Services as Licensor deems appropriate from time to time, provided such changes do not materially decrease the features or functionality of the Services as they existed at the effective date of this Agreement. Notwithstanding the foregoing, Licensor may make any modifications, in its sole discretion, to any Beta Products, including without limitation removing certain functionalities or discontinuing the availability of such Beta Products.
Service Planmeans the packaged subscription plan and associated features, as detailed at the Pricing Page, for the hosted Licensor Service to which Customer subscribes.
Software means any software, firmware, configuration files, libraries, application platforms, applications or other software embedded in or executed as part of the functionality of the Product.