Term of Services

Effective Mar 01, 2021

Acceptance

  1. These Terms & Conditions (this “Agreement”) and any other terms and policies referred to in these Terms and Conditions form the agreement between Originscale Corp. (“Originscale”) and the entity or person or user (referred to as “Customer” or “you”), collectively referred to as the Parties or each a Party, (Agreement).
     

  2. Originscale owns, or holds the relevant rights to, the Originscale Software and will license the use of the Software as a service to the Customer.
     

  3. The Customer wishes to license the Originscale Services available at https://app.originscale.io (Site) from Originscale.
     

  4. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Originscale Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.

  5. By accessing and/or using the Originscale Services you: 

    • Warrant to us that you have reviewed this Agreement, and our Privacy Policy (available on the Site – URL?), with your parent or legal guardian (if you are under 18 years of age), and you understand it; 
       

    • Warrant to us that you have the legal capacity to enter into a legally binding agreement with us or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Site and they have agreed to the Terms on your behalf; and
       

    • Agree to use the Originscale Services in accordance with this Agreement.

  6. You must not create a Customer account unless you are at least 18 years of age. If you are a parent or legal guardian permitting a person who is at least 13 years of age but under 18 years of age (a Minor) create a Customer account and/or use the Site, you agree to: (i) supervise the Minor’s use of the Site and their account; (ii) assume all risks associated with, and liabilities resulting from, the Minor’s use of the Site and their Customer account; (iii) ensure that the content on the Site is suitable for the Minor; (iv) ensure all information submitted to us by the Minor is accurate; and (v) provide the consents, representations and warranties contained in the Terms on the Minor’s behalf.
     

  7. By using our Originscale Services and subscribing to our software, you acknowledge that you have read, understood, and accepted this Agreement and you have the authority to act on behalf of any person or entity for whom you are using the Originscale Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Originscale Services. 

 

Modifications: You acknowledge and agree that Originscale may modify the terms and conditions of this Agreement in accordance with Section 14 (Modifications).
 

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE ORIGINSCALE SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE ORIGINSCALE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
 

1. Definitions

Originscale Services or referred to as just “Services” website, system, platform, content, APIs, Code and all content, services and/or products available through the Originscale platform.
 

Originscale Account the primary means for accessing and using the Originscale  Services, subject to payment of a Fee designated in the selected Plan.
 

Documentationmeans the end user technical documentation provided with the Services, as may be modified from time to time.
 

Customer Data means any data that Customer submits to the Originscale Services, including data that it collects from Customer Properties or retrieves from other Sources through the Services, including as may be incorporated in any Customer reports or output generated by the Services. Customer Data does not, however, include any Originscale or third-party templates, technology or data.

 

Fee regular payment for using the activated Account.
 

Documents/Files documents of any kind (images, spreadsheets, text files, etc.) that are inserted to the System by the Client;
 

Free Trial temporary access for the purposes of trying out the Web Site and Originscale Services in accordance with any selected Plan without paying a Fee
 

Free forever perpetual access given for the free usage of the Web Site and Orignscale Services without paying any fee.
 

Wesbite the compilation of all web assets (including images, php and html files) made available via www.originscale.io or its sub domains or domains owned by Originscale Corp.
 

System or Platform the integrated cloud computing solution for providing the Originscale Services, including but not limited to applications, software, code, hardware, databases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith

2. Originscale Services

  1. On or from the Effective Date and during the Term, Originscale agrees to provide the Services in accordance with the terms of this Agreement.
     

  2. Access to Service: During the Subscription Term (as defined below), Customer may access and use the Originscale Services for its internal business operations, subject to this Agreement, the Documentation, and any scope of use restrictions on the applicable Order Form.  This includes the right to implement Originscale Code on Customer Properties in order to collect Customer Data for use with the Originscale Services.  Access to the Originscale  Services is limited to Customer’s employees and contractors acting for the sole benefit of Customer (“Permitted Users”). Customer and its Permitted Users may need to register for a Originscale account in order to access or use the Originscale Services. Account registration information must be accurate, current and complete, and will be governed by Originscale’s Privacy Policy (currently available at https://originscale.io/privacy/). Customer is responsible for any use of the Originscale Services by its Permitted Users and their compliance with this Agreement.  Customer shall keep confidential its user IDs and passwords for the Originscale Services and remain responsible for any actions taken through its accounts.
     

  3. The Customer agrees that Originscale owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and Services and any documentation provided with the Services by the Originscale to the Customer including any Customer configuration documentation.
     

  4. Originscale reserves the right to change or remove features of the Services from time to time. Where there is any material alteration to the Originscale Services in accordance with this clause, Originscale will provide the Customer with 20 Business Days’ notice and the Customer agrees that any material alteration is at the Originscale’s discretion. 
     

  5. The Parties agree that Originscale :

    • will supply the Services on a non-exclusive basis;
       

    • does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and
       

    • is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.
       

  6. The Originscale reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.
     

  7. User Restrictions Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Originscale Services to a third party; (b) use the Originscale Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) use the Services to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Originscale); (e) copy, modify or create any derivative work of the Services or any Documentation; (f) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services); or (g) publicly disseminate performance information regarding the Services. 
     

3. Originscale Licence

  1. In consideration for payment of the Fees, the Originscale grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the Originscale Software & Services in accordance with the Originscale’s intended purpose for the Software & Services (Software as a Service Licence).
     

  2. The Customer agrees that the Software as Service License:

    • commences from the Effective Date or the day the Customer is granted access to the Services by Originscale, whichever occurs first;
       

    • permits the Customer to use the Originsale Services in accordance with the Software as a Services’ normal operating procedures; and
       

    • permits the Customer to provide access and use of the Originscale services to Authorised Users by embedding the services into Customer’s services to its customers, as applicable.
       

4. Originscale License Restrictions

  1. The Customer must not access or use Originscale’s Services, the Originscale Platform, or the Technology except as permitted by the Originscale Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with the Originscale Intellectual Property Rights in the Originscale Services, the Originscale Platform, or the Technology. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:
     

  2. resell, assign, transfer, distribute or provide others with access to the Originscale Services, the Originscale Platform, or the Technology;
     

  3. “frame”, “mirror” or serve any of the Originscale Services, the Originscale Platform, or the Technology on any web server or other computer server over the Internet or any other network;
     

  4. copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Originscale services, the Originscale Platform, or the Technology (except as expressly permitted by the Copyright Act 1968 (Cth)); or
     

  5. alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the Originscale Services, the Originscale Platform, or the Technology
     

  6. use the Service, Originscale Platform, or Technology for the purpose of bringing an Intellectual Property claim against Originscale;
     

  7. The Customer must not use the Originscale Services, the Originscale Platform, or the Technology in any way which is in breach of any statute, regulation, law or legal right of any person within United States or the jurisdiction in which the Customer or its Personnel are located.
     

5. Support and Service Levels

During the Term, the Originscale will provide the Support Services in accordance with the Service Levels during the Support Hours provided that:

  • The Customer provides Originscale with notice for applicable Services in accordance with any applicable system and processes as set out on the Site, as applicable; and
     

  • Where required, the Customer assists with investigating and ascertaining the cause of the fault and provides to the Originscale all necessary information relevant to the fault (including but not limited to what the Customer or their Personnel has done in relation to the fault).
     

6. Service Plans & Beta Releases

  1. Services Plans: Originscale makes available the Services through paid plans (“Paid Plans”), a free “Free” plan (“Free Plan”) and trial plans (“Trial Plans”). Current plans are described at https://originscale.io/pricing and Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders or pays for the Services. Customer’s permitted scope of use (such as features available, permitted number of monthly tracked orders (MTOs) and other usage limits) depends on the plan that Customer selects and will be specified on the applicable Order Form.
     

  2. Paid Plans: Paid Plans are provided for the Subscription Term designated on the applicable Order Form and, unless otherwise specified on the Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods).
     

  3. Free Plans and Trial Plans

    • Free Plans: Under Free Plans, Customer may use the Services, and the Subscription Term is ongoing until either (a) Originscale or Customer terminate this Agreement or (b) Originscale ceases to offer the Free Plan, whichever occurs first.
       

    • Trial Plans: Under Trial Plans, Customer may use the Services solely to determine whether to purchase a Paid Plan, and the Subscription Term will be fourteen (14) days unless otherwise specified in the Order Form. If Customer does not upgrade from a Trial Plan to a Paid Plan at the end of the Subscription Term, then Customer’s access to the Services may be limited or suspended (to be determined at Originscale’s sole discretion) until such time as Customer terminates this Agreement or converts to a Paid Plan.
       

    • Special Terms:Free Plans and Trial Plans may not include all features or functionality offered as part of Paid Plans, and Originscale reserves the right to add or subtract any features or functionality at any time for such plans. Originscale has the right to suspend or terminate a Free Plan or Trial Plan at any time for any reason.
       

  4. Changing Plans​​

    • Any Client has the right to upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by the Supplier. In such an event, the Client’s credit card on file with the Supplier will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan.
       

    • Downgrading of the current Plan may cause the loss of features or capacity of the Account, as well as the loss of Client Data.
       

  5. Beta Releases

    1. Customer may receive access to a Service (or Service features) as an alpha, beta or early access offering (“Beta Releases”). Originscale identifies all Beta Releases as such and any usage by Customer is optional. Use of a Beta Release is permitted only for Customer’s internal evaluation during the period designated by Originscale (or if not designated, 30 days) and may be subject to additional terms provided by Originscale and agreed by Customer. Originscale may suspend or terminate Customer’s access to Beta Releases at any time for any reason. Beta Releases may be inoperable, incomplete or include features that Originscale may never release, and their features and performance information are Originscale’s Confidential Information. Notwithstanding anything else in this Agreement, Originscale’s liability for Beta Releases will not exceed US$50.
       

7. Data

  1. The Customer grants to the Originscale a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to any Intellectual Property Rights in the Data:
     

    • to supply the Services including to enable the Customer, its Personnel and any Authorised Users to access and use the Services;
       

    • to do analysis for the purposes of predictive safety analytics, industry guideline production and other construction safety-related uses, provide such Data is re-identified;
       

    • for diagnostic purposes;

       

    • to test, enhance and otherwise modify the Services whether requested by the Customer or not;

       

    • to develop other Services; and

       

    • as reasonably required for the performance of the Originscale’s obligations under this Agreement.

       

  2. The Customer represents and warrants that:

    • any and all Data supplied by the Customer or otherwise accessed by the Originscale through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable;
       

    • its Data does not breach any relevant laws, regulations or codes;
       

    • its Data does not infringe the Intellectual Property Rights of any third party;
       

    • it will comply with all applicable laws and regulations in the jurisdiction where the Customer accesses and publishes content using the Originscale Services; and
       

    • to the extent that the Data contains personal data, it has obtained the necessary consents in order to transfer or permit access to this Data in accordance with applicable privacy and data protection laws.
       

  3. The Customer acknowledges and agrees that:

    • Any collation, conversion and analysis of Data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Data. The Originscale is not liable for any such errors, omissions, delays or losses. The Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;
       

    • The Originscale may relocate the Data to another jurisdiction. In each case, the Originscale will give the Customer 15 Business Days’ notice and use all reasonable endeavours to minimise the effect of such change on the Customer’s access and use of the Services;
       

    • The Originscale is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by the Customer, its Personnel, its Related Bodies Corporate or any Authorised Users; and
       

    • The Originscale is not responsible for the integrity or existence of any Data on the Customer’s Environment, network or any device controlled by the Customer or its Personnel.
       

  4. The Customer agrees to indemnify and hold the Originscale harmless for the corruption or loss of any Data controlled or stored by the Customer or any Related Bodies Corporate, to extent the corruption or loss is not caused by the negligent act or omission of the Originscale or its Personnel.
     

8. Customer Responsibilities and Obligations

  1. The Customer will provide all required materials as required by the Originscale from time to time for the Originscale to perform the Services. 
     

  2. The Customer must, at the Customer’s own expense:

    • provide all reasonable assistance and cooperation to the Originscale in order to enable the Originscale to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorised Users any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow the Originscale to provide the Services;
       

    • use reasonable endeavours to ensure the integrity of the Data;
       

    • permit the Originscale and its Personnel to have reasonable access to the Customer Environment for the purposes of supplying the Services;
       

    • ensure that only Customer Personnel and Authorised Users will access and use the Originscale Services and such use and access will be in accordance with the terms and conditions of the Originscale Licence; and
       

    • make any changes to its Customer Environment that may be required to support the delivery and operation of any Services.
       

  3. The Customer is responsible for its use of the Services and must ensure that no person uses the Services:

    • to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;
       

    • to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
       

    • in any way that damages, interferes with or interrupts the supply of the Services.
       

  4. The Customer acknowledges and agrees that:

    • it is responsible for all users using the Services including its Personnel and any Authorised Users;
       

    • its use of the Services will be at its own risk;
       

    • it is responsible for maintaining the security of its account and password. The Originscale cannot and will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation;
       

    • the Originscale may alter or update the Customer’s account logins and passwords and the logins and passwords of any Authorised Users at any time throughout the Term;
       

    • the Customer is responsible for all content posted and activity that occurs under their account. This includes content posted by others who have logins or accounts associated with the Customer’s account;
       

    • if they operate a shared Customer account, make (or allow any third party to make) material available by means of the Services (including shareable links and SCORM objects), the Customer is entirely responsible for the content of, and any harm resulting from, that content. That is the case regardless of what form the content takes, which includes, but is not limited to text, photo, video, audio, or code;
       

    • the technical processing and transmission of the Service, including the Customer’s content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices;
       

    • if the Originscale wishes to alter the delivery of the Originscale Software as a service Services which requires a change to the Customer Environment (including reconfigurations or interface customisations the extent necessary to access or use the Originscale Software as a service Services) the Customer will give any assistance to the Originscale or make any such changes to the Customer Environment, that the Originscale reasonably requires; and
       

    • the Originscale may pursue any available equitable or other remedy against the Customer as a result of a breach by the Customer of any provision of this Agreement.
       

9. Prohibited Use

  1. The Customer acknowledges and agrees that this Agreement incorporates by reference the terms of any acceptable use policy as set out in this agreement or as provided to the Customer from time to time.
     

  2. The Customer acknowledges and agrees that it must not, and will ensure each Authorised User does not:

    • use the Originscale Software as a service Services to violate any legal rights of any person, the Customer or other entity in any jurisdiction;
       

    • use the Originscale Software as a service Services in relation to crimes such as theft and fraud;
       

    • use the Services in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy;
       

    • make any unauthorised copy of any copyrighted material owned or licenced by the Originscale;
       

    • introduce malicious programs into the Originscale System (e.g. viruses, worms, trojan horses, e-mail bombs);
       

    • reveal the Customer’s account password to others or allow use of the Customer’s account the to those who are not the Customer’s Personnel or Authorised Users;
       

    • use the Originscale Software as a service Services to make fraudulent offers of goods or services;
       

    • use the Originscale Software as a service Services to carry out security breaches or disruptions of a network. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorised to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
       

    • use any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons’ use of the Originscale Software as a service Services;
       

    • send any unsolicited email messages through or to users of the Originscale Software as a service Services in breach of the Spam Act 2003 (Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages; use the Originscale Software as service Services in breach of any person’s privacy (such as by way of identity theft or “phishing”) is strictly prohibited; and
       

    • use the Originscale Software as a service Services to circumvent user authentication or security of any of the Customer’s hosts, networks or accounts or those of the Customer’s customers or suppliers.
       

10. Ownership

  1. Customer Data
    As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Originscale.  Subject to the terms of this Agreement, Customer hereby grants to Originscale a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer during the Subscription Term.
     

  2. Originscale Technology
    This is a subscription agreement for access to and use of the Services. Customer agrees that Originscale or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, all Documentation and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Originscale may generate Usage Data to operate, improve, analyze and support the Services, for benchmarking and reporting and for Originscale’s other lawful business purposes. Except as expressly set forth in this Agreement, no rights in the Services or any Originscale technology are granted to Customer. 
     

  3. Feedback
    Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Originscale product or service to Originscale (“FeedbackFeedback”). Originscale may freely use or exploit Feedback in connection with any of its products or services.”). Originscale may freely use or exploit Feedback in connection with any of its products or services.
     

11. Fees & Payment

  1. Fees and Payment
    All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form.

    If no payment terms are specified in the Order Form, then the following default terms apply:
    1. for monthly Subscription Terms, Customer will pay all fees at the end of the month and
       

    2. for annual Subscription Terms, Customer will pay all fees within thirty (30) days of invoice.  Except as expressly set forth in Section 14.1 (Modifications to this Agreement), all fees are non-refundable.  Originscale reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term.  Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less
       

  2. Credit Card Authorization
    Originscale may seek pre-authorization of Client’s credit card account prior to your purchase of Originscale Services in order to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You authorize such credit card account to pay any amounts described herein, and authorize Supplier to charge all sums described in these Terms to such credit card account. You agree to provide Suppler updated information regarding your credit card account upon Supplier’s request and any time the information earlier provided is no longer valid.
     
  3. Taxes
    Originscale’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “”) and Customer shall be responsible for payment of all Taxes associated with this Agreement and all Order Forms, except that Originscale is solely responsible for taxes assessable against Originscale based on Originscale’s net income, property, and employees. If any deduction or withholding is required by law, Customer shall notify Originscale and shall pay Originscale any additional amounts necessary to ensure that the net amount that Originscale receives, after any deduction and withholding, equals the amount Originscale would have received if no deduction or withholding had been required.
     

  4. Overages
    If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, Originscale reserves the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees monthly in arrears.
     

12. Confidential Information

Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party constitute the confidential property of the Disclosing Party, ("Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.  Any Originscale technology, performance information relating to the Services, and the terms and conditions of this Agreement shall be deemed Confidential Information of Originscale without any marking or further designation.  Except as expressly authorized herein, the Receiving Party shall:

  1. hold in confidence and not disclose any Confidential Information to third parties and
     

  2. not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Originscale, the subcontractors referenced in Section 18.9), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 12.  
     

The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document:
 

  • was rightfully in its possession or known to it prior to receipt of the Confidential Information;
     

  • is or has become public knowledge through no fault of the Receiving Party;
     

  • is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
     

  • is independently developed by employees of the Receiving Party who had no access to such information.  The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment.  The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. 
     

13. Co-Marketing

Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer’s name and logo on Originscale’s web site and in Originscale promotional materials. Customer agrees that Originscale may disclose Customer as a customer of Originscale.
 

14. Modifications

  1. Modifications to this Agreement.
    Originscale may modify the terms and conditions of this Agreement (which may include changes to Services pricing and plans) from time to time with notice to Customer in accordance with Section 18.5 (Notice).
     

    1. Free Plans and Trial Plans. If Customer has a Free Plan or a Trial Plan, any modifications will become effective immediately, and if Customer objects to the modifications, its exclusive remedy is to terminate this Agreement and cease using the Services.
       

    2. Paid Plans. If Customer has a Paid Plan, the following terms apply: Unless a shorter period is specified by Originscale (e.g., due to changes in the law or exigent circumstances), the modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order Form. If Originscale specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or order and Customer notifies Originscale in writing of its objection to the modifications within thirty (30) days after the date of such notice, Originscale (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Services for the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Services, and, in any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version
       

  2. Changes to Policies
    In addition, Originscale may modify the security terms described in Exhibit A (Information Security Policy) from time to time to reflect process improvements or changing practices (but the modifications will not materially decrease Originscale’s obligations as compared to those in such policies as of the Effective Date). Policy modifications will apply automatically on the effective date specified by Originscale and the Customer objection procedures in Section 14.1 (Modifications to this Agreement) will not apply.
     

15. Term & Termination

  1. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
     

  2. Termination for Cause.  Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, nothing in this Section 15.2 limits Originscale’s right to terminate or suspend any Free Plan or Trial Plan as set forth in Section 6.3 (Free Plans and Trial Plans).
     

  3. Suspension of Services.  Without limiting Originscale’s termination or other rights hereunder, Originscale reserves the right to suspend Customer’s access to the Services (and any related services) in whole or in part, without liability to Customer: (i) if Customer’s account is thirty (30) days or more overdue; (ii) for Customer’s breach of Sections 2.2 (Access to the Services), 2.7 (Use Restrictions) or 8 (Customer Obligations); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Services.  When practicable, Originscale will use reasonable efforts to provide Customer with advance notice of the suspension (email sufficing).  Unless this Agreement has been terminated, Originscale will cooperate to restore Customer’s access to the Services promptly after Originscale verifies that Customer has resolved the issue requiring suspension. 
     

  4. Effect of Termination.  Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Services (including any and all related Originscale technology), cease distributing any Originscale Code installed on Customer Properties, and delete (or, at Originscale’s request, return) any and all copies of the Documentation, any Originscale passwords or access codes and any other Originscale Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Services, and that Originscale may delete any such data as may have been stored by Originscale at any time.  Upon any expiration or termination of this Agreement, Originscale shall delete all Customer Data within sixty (60) days after receipt of Customer’s written request. Notwithstanding the foregoing, Customer understands that Originscale may retain copies of Customer Data in regular backups or as required by Laws, which will remain subject to the security standards defined in Originscale’s Security Policy available at www.originscale.io/security. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. 
     

  5. Survival.  The following Sections shall survive any expiration or termination of this Agreement: 2.7 (Use Restrictions), the disclaimers in Section 6.5 (Beta Releases), 8 (Customer Responsibilities and Obligations), 10 (Ownership), 11 (Fees and Payment), 15 (Term and Termination), 16 (Warranty Disclaimer), 17 (Limitation of Remedies and Damages), 12 (Confidential Information), 14 (Modifications) and 18 (General Terms). 

 

16. Warranty Disclaimer

THE SERVICES AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER ORIGINSCALE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. ORIGINSCALE DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES ORIGINSCALE WARRANT THAT IT WILL REVEIW THE Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss.  CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH DESTINATIONS AT CUSTOMER’S ELECTION AND ORIGINSCALE TAKES NO RESPONSIBILITY FOR ANY DESTINATION’S USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. CUSTOMER UNDERSTANDS THAT IT IS RESPONSIBLE FOR PUTTING IN PLACE ANY CONTRACTUAL ARRANGEMENTS WITH DESTINATIONS REQUIRED BY LAWS. ORIGINSCALE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Originscale. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
 

17. Limitation of Remedies and Damages

  1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 
     

  2. Liability Cap.  ORIGINSCALE’S(AND ITS SUPPLIERS’) ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO ORIGINSCALE DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.  
     

  3. Excluded Claims.  "Excluded Claims” means (a) any claim arising from Customer’s breach of Sections 2.7 (Use Restrictions), 8 (Customer Responsibilities and Obligations) or (b) any amounts payable to third parties pursuant to Customer Responsibilities and Obligations Section 8.
     

  4. Nature of Claims and Failure of Essential Purpose.  The parties agree that the waivers and limitations specified in this Section 17 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

 

18. General Terms

  1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.  Neither party may assign this Agreement without the advance written consent of the other party, except that Originscale may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Originscale’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 18.1 will be null and void.
     

  2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. 
     

  3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods.  The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in the state of Delaware and both parties hereby submit to the personal jurisdiction of such courts.
     

  4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. 
     

  5. Notice. Any notice or communication required or permitted under this Agreement shall be in writing.  If to Originscale, notices must be provided to the address set forth below (Originscale Contact Information) and shall be deemed to have been received

    If given by hand, immediately upon receipt;


    If given by overnight courier service, the first business day following dispatch or

    If given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.  If to Customer, Originscale may provide notice to Customer’s email address on file or through the Services.   Any email notices shall be deemed to have been received upon delivery. Either party may update its address with notice to the other party.

Originscale Contact Information.Legal Notices:

Legal notices should be sent to:
 

Attn: Originscale Legal

Originscale Corp, 10 Times Square

6th Floor New York City, New York 10018

United States

 

With a copy also provided to:  legal@originscale.io
 

Other Notices: Any Customer notices, questions or complaints regarding the Services should be sent to the following email address: contact@originscale.io
 

  • Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.  
     

  • Entire Agreement;Interpretation. 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 and communications relating to the subject matter of this Agreement.  No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. In this Agreement, headings are for convenience only and “including”, “e.g.”, and similar terms will be construed without limitation. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Originscale may make changes to the Services, and Originscale will update the applicable Documentation accordingly.
     

  • Force Majeure.  Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
     

  •  Subcontractors. Originscale may use the services of subcontractors and permit them to exercise the rights granted to Originscale in order to provide the Services under this Agreement.  These subcontractors may include, for example, Originscale’s hosting, infrastructure and CDN providers.  Originscale remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Services as required under this Agreement. 
     

  • Subpoenas.  Nothing in this Agreement prevents Originscale from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Originscale shall use commercially reasonable efforts to notify Customer where permitted to do so.
     

  • Independent Contractors.  The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
     

  • Export Control.  In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions.  Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.