Terms of Service
These Platform Terms and Conditions, together with all attachments, addenda, exhibits, statements of work and documents at referenced URLs govern Customer’s use of the Orb Platform and Orb API, as each is defined below (collectively, the “Agreement”). Orb supports companies that offer products to customers under a usage-based pricing model (each such product, a “Customer Product”). Orb has developed a proprietary software-as-a-service platform that operates as a billing infrastructure that measures and charges for usage of Customer Products (the “Orb Platform”). Orb’s customers use the Orb Platform’s application programming interface described further below (the “Orb API”) to integrate Customer Products with the Orb Platform to monitor usage of such Customer Products and produce the billing metrics needed to support usage-based pricing.
1. Definitions
1.1 “Affiliates” means, with a respect to a party, any entity that controls, is controlled by, or which is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding shares or securities representing the right to vote in the election of directors or other management of operations of such party.
1.2 “Authorized Users” means an employee or contractor of Customer or Customer’s Affiliates, who have been assigned a unique login for the Orb Platform and are (i) bound by confidentiality obligations no less protective than this Agreement, (ii) are not a direct competitor of Orb, and (ii) Customer remains responsible to Orb such employee or contractor’s compliance with the terms and conditions of this Agreement.
1.3 “Customer Data” means the raw data or input uploaded by Customer through the Orb API.
1.4 “Customer Product” means a product offered by Customer under a usage-based pricing model.
1.5 “Documentation” means the Authorized User documentation made available by Orb on its website.
1.6 ”End Customers” means a third-party customer of Customer using a Customer Product.
1.7 “End Customer Features” means the features made available for End Customers to use as specified in the Documentation.
1.8 “Orb API” means the application programming interface used to integrate a Customer Product with the Orb Platform to monitor usage of such Customer Product.
1.9 “Orb Platform” means Orb’s software-as-a-service platform that operates as billing infrastructure to measure and charge for usage of a Customer Product to End Customers.
1.10 “Orb Service” means the Orb Platform, Orb API and Documentation, as each may be modified from time to time in Orb’s sole discretion.
1.11 “Order Form” means the ordering document to which this document is attached.
1.12 “Support Services” means the maintenance and support services provided through email and Slack (if purchased).
1.13 “Term” means the length of time set forth in the Order Form that Customer has rights to access and use the Orb Service in accordance with the terms and conditions of this Agreement.
2. Access to platform
2.1 Orb Platform. During the Term and subject to the terms and conditions of this Agreement, Orb grants Customer a limited, nonexclusive, nontransferable, non-sublicensable right, during the Term, to (i) access and use the Orb Platform, (ii) use the Orb API solely to upload Customer Data into the Orb Platform, in accordance with the Documentation, and (iii) use the Documentation, solely for Customer’s internal business purposes; provided that Customer may make the End Customer Features available to its End Customers solely for the purpose of providing such End Customers access to such End Customer Features.
2.2 Limitations. Customer will only provide access to (i) the Orb Service to Authorized Users, and (ii) End Customer Features to a Customer’s End Customers. Customer will be responsible and liable for all Authorized Users’ and End Customers’ compliance with the terms and conditions of this Agreement. Except as expressly permitted hereunder, neither Customer nor any Authorized User or End Customer will, or will permit or authorize any third party to: (a) copy, reproduce, reverse engineer, decompile, disassemble, modify or create derivative works based on the Orb Service; (b) sell, rent, lease, distribute, assign or use the Orb Service for timesharing or service bureau purposes (except as expressly permitted in Section 2.1 with regards to End Customers); (c) circumvent, disable, interfere with or disrupt the integrity, security or performance of or otherwise attempt to gain unauthorized access to the Orb Service or its related systems, hardware or networks; or (d) remove or obscure any proprietary notices or labels of Orb or its suppliers on the Orb Service.
3. Ownership; reservation of rights
3.1 Customer Data. Customer hereby grants Orb the nonexclusive, worldwide, royalty-free, fully paid up, sublicensable, nontransferable (except as set forth in Section 10.1) right and license to access, use, publish, process, display, aggregate and store Customer Data to perform its obligations under this Agreement, account management, and other purposes compatible with providing the Orb Service. Customers acknowledge and agrees that Orb may collect, use, transmit, aggregate, distribute, publish and display Customer Data in pseudonymized form for purposes of improving or demonstrating the effectiveness of the Orb Service, analyzing trends, and other lawful business purposes (“Pseudonymized Data”). Orb will not publicly publish, distribute or display Pseudonymized Data in any manner that will reveal the identity, whether directly or indirectly, of Customer, End Customers or any individual. As between the parties, Customer reserves any and all right, title and interest in and to the Customer Data other than the licenses therein expressly granted to Orb under this Agreement.
3.2 Ownership; Reservation of Rights. Customer acknowledges and agrees that Orb retains all rights, title, and interest in and to the Orb Service, all copies or parts (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. Orb grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Orb Service.
3.3 Feedback. Subject to Orb’s confidentiality obligations under Section 6 of this Agreement, Customer, its Affiliates and Authorized Users, may, on an entirely voluntary basis, submit feedback or suggestions, and Orb and its Affiliates may use and modify such feedback or suggestions without any restriction or payment..
3.4 Customer Responsibilities. Customer will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Orb Service and notify Orb promptly of any such unauthorized access or use, and (b) use the Orb Service only in accordance with the documentation, this Agreement and any applicable laws and regulations. Customer will be solely liable for any uses of accounts linked to Customer’s login credentials.
3.5 Privacy; Data Security. Orb will implement and maintain reasonable administrative, physical and technical safeguards, including, without limitation, an information security program that meets commercially reasonable industry practice to safeguard Customer Data. Further, Orb represents and warrants that Orb has obtained its SOC2 Type II certification and that such certification shall remain in effect during the Term.
4. Fees; payment terms
4.1 Fees; Payment Terms. Customer will pay to Orb the fees set forth in the Order Form in accordance with the payment terms set forth in the Order Form. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Orb within ten (10) days from the time such payment is due, Orb may suspend Customer’s access to the Orb Platform until such payment is made. Orb may revise the fees set forth in the Order at time of renewal.
4.2 Overages. Within a commercially reasonable period of time following the conclusion of each calendar month occurring during the Term, Orb shall deliver to Customer an invoice that calculates the Overages for the applicable month. Overages shall be determined by Orb using the calculation indicated on the applicable Order Form; such calculation shall be final. Customer agrees to pay all amounts indicated on each invoice within thirty (30) days of the date of such invoice.
4.3 Net of Taxes. All amounts payable by Customer to Orb hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Orb. Unless Customer provides evidence of an exemption from the relevant Taxes, Customer will pay and be solely responsible for all Taxes and will gross up any payment to include such Taxes, and Customer will not withhold any Taxes from any amounts due to Orb. . If a taxing authority pursues Orb for unpaid Taxes for which Customer is responsible for under this Agreement and which Customer did not pay Orb, Orb may invoice Customer and Customer will pay such Taxes, including all applicable interest and penalties, to Orb or directly to the taxing authority with receipt of payment to Orb.
4.4 Future Functionality. Customer’s purchase is not dependent on any oral or written comments made by Orb regarding future functionality or features. Customer understands and agrees that any features or functions of the Orb Service, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. Customer is purchasing the Orb Service based solely upon functionality and features that are currently available at the time of executing an Order Form. The development, release and timing of any features or functionality remains in Orb’s sole discretion.
5. Termination
5.1 Termination; Effect of Termination. Either party may terminate this Agreement if the other party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days (or ten (10) days in the case of non-payment) of receiving notice. Upon any termination or expiration of this Agreement for any reason, Customer may request an export of the Customer Data in a mutually agreed upon format within thirty (30) days of the effective date of such termination or expiration. Thereafter, Orb may delete any Customer Data stored or otherwise archived on the Orb Platform or on Orb’s network. Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Orb to provide the Orb Platform will immediately terminate and (a) Customer will cease use of the Orb Platform; and (b) each party will return or destroy all copies or other embodiments of the other party’s Confidential Information (subject to Orb’s rights under Section 3.1(b) and (c)).
5.2 Survival. Upon expiration or termination of this Agreement, any provisions intended by their nature to survive termination of this Agreement shall survive.
6. Confidentiality
6.1 Scope. As used herein, “Confidential Information” means any non-public information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, has identified in writing as confidential or proprietary to the other party (the “Receiving Party”), or that a reasonable person should understand to be confidential due to the circumstances of disclosure or the nature of the information itself;. Orb’s Confidential Information includes the Orb Service. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party.
6.2 Use and Non-Disclosure. Each party agrees that it will use the Confidential Information of the Disclosing Party solely to perform its obligations or exercise its rights under this Agreement and will exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Neither party will disclose, or permit to be disclosed, the Disclosing Party’s Confidential Information or the terms of this Agreement directly or indirectly, to any third party without the Disclosing Party’s prior written consent, except either party may disclose the Disclosing Party’s Confidential Information (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations; and (ii) as required by law (in which case, where permissible and feasible, the Receiving Party will provide the Disclosing Party with prior written notification and the opportunity to contest such disclosure. The Receiving Party will use commercially reasonable efforts to minimize such disclosure to the extent permitted by applicable law). In the event of actual or threatened breach of the provisions of this Section by the Receiving Party, the Disclosing Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
7. Representations, warranties, and disclaimer
7.1 Customer Representations and Warranties. Customer represents and warrants that it has the legal authority and all rights necessary to provide the Customer Data to Orb hereunder, and Customer’s provision of the Customer Data to Orb does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation.
7.2 Uptime. Orb will use reasonable efforts consistent with prevailing industry standards to (a) meet the service levels set forth in Exhibit A attached hereto; and (b) provide the Orb Service in a manner that minimizes errors and interruptions in accessing and using the Orb Service. The Orb Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Orb or by third-party providers, or because of other causes beyond Orb’s reasonable control, but Orb will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Orb’s control.
7.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE ORB SERVICE IS PROVIDED ON AN “AS-IS” BASIS AND ORB DISCLAIMS ANY AND ALL WARRANTIES. ORB DOES NOT WARRANT THAT THE ORB SERVICE IS ERROR-FREE OR THAT OPERATION OF THE ORB SERVICE WILL BE UNINTERRUPTED. ORB DOES NOT WARRANT THAT THE RESULTS GENERATED BY THE ORB SERVICE ARE ACCURATE OR WILL LEAD TO ANY PARTICULAR OUTCOME, AND ORB EXPRESSLY DISCLAIMS ALL LIABILITY WITH RESPECT TO SUCH RESULTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED, AND ORB EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
8. Limitations of liability
8.1 Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1, (B) EITHER PARTY’S BREACH OF SECTION 5 (EXCLUDING ANY THIRD PARTY DATA BREACH), AND (C) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY.
8.2 General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1, AND (B) EITHER PARTY’S BREACH OF SECTION 5 (EXCLUDING ANY THIRD PARTY DATA BREACH), AND (C) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 BELOW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO ORB UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
8.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
9. Indemnification
9.1 Indemnification for Infringement. Orb will defend, or settle, Customer and the officers, directors, Authorized Users, and employees of Customer (“Customer Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the Orb Service infringes any intellectual property right of a third party. Further, Orb will indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Orb’s indemnification obligation will not apply to Claims to the extent arising from (a) modification of the Orb Service by any party other than Orb without Orb’s express consent; (b) the combination, operation, or use of the Orb Service with other product(s), data or services where the Orb Service would not by itself be infringing; (c) Customer Data; or (d) unauthorized or improper use of the Orb Service. If the use of the Orb Service by Customer has become, or in Orb’s opinion is likely to become, the subject of any claim of infringement, Orb may at its option and expense (i) procure for Customer the right to continue using the Orb Service as set forth hereunder, (ii) replace or modify the Orb Service to make it non-infringing so long as the Orb Service has at least equivalent functionality, (iii) substitute an equivalent for the Orb Service or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement and refund all prepaid, unused fees under any Order Form. This Section 9.1 states Orb’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
9.2 Indemnification by Customer. Customer will defend Orb and the officers, directors, licensors, and employees of Orb (“Orb Indemnified Parties”) against any Claims arising from (a) any use or disclosure by Customer of the Orb Service in violation of this Agreement, (b) the Customer Data, (c) the Customer Product and (d) Customer’s violation of applicable law related to use of the Orb Service. Further, Customer will indemnify the Orb Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
9.3 Indemnification Procedure. If a Customer Indemnified Party or a Orb Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any Claim, the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Claim. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Claim with counsel of its own choosing. Any compromise or settlement of an Action that requires an admission of liability or affirmative obligation of the Indemnified Party (other than the obligation to cease using the Orb Service by Customer) will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
10. General
10.1 Assignment. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section will be null and void.
10.2 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.3 Export Control. Customer may not remove or export from the United States or allow the export or re-export of the Orb Platform or anything related thereto, or any direct product in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
10.4 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
10.5 Governing Law, Jurisdiction and Venue. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts. This Agreement shall not be governed by the1980 UN Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable court set forth above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
10.6 Notices. All notices under this Agreement will be in writing and sent to the addresses set forth in the Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.7 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever.
10.8 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.9 Use of Name. Customer agrees that Orb may (a) list and/or identify Customer’s name (including by displaying any Customer trademark) to identify the business relationship between the parties on Orb’s website and in other marketing and advertising collateral and (b) publish a case study with respect to Customer’s use of the Orb Platform.
10.10 Entire Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the Order Form and these Platform Terms and Conditions, the terms and conditions set forth in these Platform Terms and Conditions will govern unless expressly stated otherwise in the Order Form. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Customer issues any purchase orders or similar documents in connection with its purchase of the Orb Service, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to this Agreement. To facilitate execution, this Agreement may be executed by one or more of the parties in the form of an “Electronic Record,” as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”). This Agreement may be executed in as many counterparts as may be required to reflect all parties’ agreement, all counterparts will collectively constitute a single agreement, and such “Electronic Signature,” as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document.
Date of Last Update
These terms were last updated on November 13, 2023.
