Orchid Software and Professional Services Terms of Service
Software Terms of Service
Updated July 25 2024
1. Introduction
These Terms of Service (the “Terms”) are a legal agreement between you and Orchid LLC, and its subsidiaries, partners, affiliates, agents, and third-party contractors (“Orchid”), and describe the terms and conditions and govern the access and use of Orchid’s Software (the “Software”) and related consulting services collectively referred to as the “Services”. The Services consists of the proprietary operating system, software, software as a service offerings, firmware, applications, service plans, methodologies, the website associated with the software, documentation, tools, components, data, messages, text, images, photographs, graphics, audio, video, webcasts, documents such as press releases and white papers and any updates thereto (including software maintenance, service information, help content, bug fixes, or maintenance releases) provided by Orchid in connection with the Service. The Software and Services are not legal advice and there are no representations or warranties that the Software or Services are current or complete. Any of your obligations set out in these Terms are in addition to and not in substitution of any other obligations imposed on you by any device or service provider utilized to access the Software pursuant to any separate agreement covering purchase, lease, or use of such device or service.
2. Acknowledgement
Your use of the Services constitutes agreement to these Terms and any policies referenced within (“Policies”), including our Privacy Policy and terms that limit our liability (see Sections 15 and 16) and require arbitration for any potential legal dispute (see Section 22). If you are using the Services on behalf of a business or other legal entity, you represent that you have authority to bind that business or entity to these Terms, and that the business accepts these Terms.
3. Your License
Orchid hereby grants you a limited, non-exclusive, non-transferable, worldwide license to use the Software solely for business purposes. Orchid and its licensors have all rights to revoke this license. You shall not (i) license, transfer, assign, grant, resell, distribute or otherwise commercially exploit or make available to any third party the Software in any way; (ii) reverse engineer or access the Software in order to (a) build a competitive product or service, (b) build a product using similar features, functions or graphics of the Service, or (c) copy any features, functions or graphics of the Software; (iii) modify or make derivative works based upon the Software; or (iv) create internet links to the Software or “frame” or “mirror” any part of the Software on any other server or wireless or internet-based device. You agree not to use the Site, or Content provided on or through the Site, for any purpose that is unlawful or prohibited by these Terms of Use or the rules, guidelines or terms of use posted for a specific area of the Site or Content provided on or through the Site. You agree that You will neither use the Site in a manner, nor Share (as defined below) any Content, that: (a) could damage, disable, overburden, or impair the Site or interfere with any other party’s use or enjoyment of the Site; (b) is false or misleading; (c) is defamatory, derogatory, degrading or harassing of another or constitutes a personal attack; (d) invades another’s privacy or includes, copies or transmits another’s confidential, sensitive or personal information; (e) violates or infringes or promotes the violation or infringement of another’s rights, including intellectual property rights; (f) You do not have the right and authority to Share and grant the necessary rights and licenses for; (g) violates or promotes the violation of any applicable laws or regulations; or (h) contains any viruses, Trojan horses, or other components designed to limit or harm the functionality of a computer. You may not reverse engineer, modify, decompile, or create derivative works of the Content. We may report You to the relevant authorities and may act to the fullest extent of applicable laws if You transmit or upload content intended or designed to cause harm. We have no obligation to monitor the Site, Content, or information, data, documents, or other content posted or uploaded to the Site or Content by You, however, without limitation, We reserve the right to access and review all use and activity on the Site, including data and information posted by all users on the Site. We reserve the right to limit or terminate Your access to any or all of the Site and Content at any time without notice for any reason whatsoever in addition to all other rights and remedies.
4. Your Account
You may register to use the Software with an account in order to make use of certain functions and/or the Software
(“Account”). You are responsible for maintaining the confidentiality of the username and password, and other signor credentials and access controls that you designate during or following the registration process, and you are fully responsible for all activities that occur under your Account. You agree to: (i) immediately notify Orchid of any unauthorized use of your Account or any other breach of security, and (ii) ensure that you exit from the Account at the end of each session. Orchid will not be liable for any loss or damage arising from your failure to comply with this provision. You should exercise caution when accessing your Account from a public or shared computer to ensure that others are not able to view or record your Account’s username, password, and/or other personal information. You agree to provide true, accurate, current and complete information about yourself and/or your business and maintain and update this information to keep it true, accurate, current, and complete. Orchid reserves the right to terminate or suspend any user’s Account and/or access to the Software if Orchid determines in its sole discretion that any user has violated these Terms.
5. Consent to Electronic Communications
You consent to receiving electronic messages, including telephone calls, e-mail messages, and SMS and text messages, from Orchid even if the number provided is a cellular phone number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes.
6. Representations and Warranties
You represent and warrant to us that: (a) you are authorized to obtain these Services on behalf of your business or employer; (b) you have the right, power, and ability to enter into and perform under these Terms on behalf of your business or employer; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including, but not limited to the Gun Control Act of 1968, the National Firearms Act of 1934, the Arms Export Control Act of 1976, and all firearms laws, regulations, and rulings issued by State, county, and local authorities; (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) your use of the Services will be in compliance with these Terms.
7. Payment
You will pay the fees for the Services according to the then-prevailing rates at the time of your initial account creation, or, alternatively, according to a separate written agreement between you and Orchid. Fees are due in advance for a monthly term unless otherwise agreed between you and Orchid in a separate writing. Orchid reserves the right to increase its subscription fees for the Services at any time upon providing notice 30 (thirty) days in advance. You are obligated identify your payment method and you agree to keep your payment information current with Orchid Solutions to enable payment processing. Failure to keep your payment information current and/or make payment on time is a material breach of these terms and Orchid may terminate these Terms and your use of the Services in accordance with Section 8. Orchid reserves the right to charge the bank account or credit card on file once the outstanding invoice balance has reached 60 days. Balances over 60 days will be subject to an interest charge of 1.5% per month.
8. Term and Termination
These Terms commence upon your use, access of or receipt of the Service and continues throughout such use, access or receipt unless earlier terminated by Orchid. Orchid may terminate these Terms immediately and suspend or terminate your access to the Service in whole or in part, with or without notice, in the event of any breach or threatened breach of any portion of these Terms by you as we may determine in our sole discretion. All fees paid by you upon registration are non-refundable if these Terms or your access to the Service is terminated as a result of your breach of these Terms. Any other agreement you may enter into with Orchid concerning this Service or other software or services may contain additional terms regarding this Service and your relationship with Orchid, including the term and termination of use of this Service. Upon termination of these Terms and your use of the Service, whether by you or Orchid, Orchid will provide you with a reasonable period of time to allow you to extract your account data that Orchid has stored on its servers as of the termination date. Subject to the foregoing sentence and applicable law and card association rule requirements, Orchid will delete account data stored on its servers upon termination of these Terms and will not be liable to you or any third party for termination of access to the Service or deletion of your account data.
9. Implementation
Upon first purchasing the Software, Orchid may provide you with assistance identified in a separate writing provided by Orchid (“Implementation”) to create your account and support the initial setup and use of the Software. Orchid will use commercially reasonable efforts to execute the Implementation in a timely and professional manner. You agree to provide any data, information, access to facilities, software, or other resources or materials in your possession required by Orchid to execute the implementation. Any request to modify the scope of the implementation shall be set forth in a separate writing signed by the parties. Orchid is under no obligation to agree to modify the Implementation. Use of the Software is your approval of all Implementation activities performed, including, but not limited to, account or system configuration, user creation, data loads, and proper functioning of all hardware, firmware, and ancillary software necessary to utilize the Software. Failure to object to any of the results of any Implementation rendered is deemed total acceptance. If you have any objection as to the result of any of the Implementation, you shall promptly provide written notification to Orchid within 3 business days of your first use, specifically identifying any deficiencies and provide to Orchid any such data, information, access to facilities, or other resources or materials in your possession necessary to remedy the deficiency.
10. Intellectual Property
Subject to the limited rights and licenses expressly granted hereunder, Orchid (and its licensors) reserves all rights, title and interest (including all intellectual property and proprietary rights) in and to the Service, all Orchid trademarks, names, logos, all copies, modifications and derivative works thereof, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein. Additionally, all your (a) suggestions for correction, change or modification to the Service, (b) evaluations, and (c) other feedback, information and reports provided to Orchid hereunder (collectively, “Feedback”), will be the property of Orchid, and you shall and hereby do assign any rights in such Feedback to Orchid. You may not use our Marks in any manner, including in any advertisements, displays, or press releases, without the prior written consent of Orchid. “Marks” means Orchid names, logos, emblems, brands, service marks, trademarks, trade names, or other proprietary designations. You will not file any proceeding in any forum that challenges the ownership of any part of the Service, any related software, materials or documentation, or intellectual property rights identified herein. Failure to comply with this section constitutes a material breach of these Terms.
11. Confidential Information
“Confidential Information” means non-public information provided by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or reasonably should be considered as such, excluding information that (a) is or becomes public through no fault of the Recipient, (b) was known to Recipient before the disclosure, (c) is disclosed to Recipient by a third party without violation of any confidentiality restrictions, or (d) is independently developed by the Recipient without access to or use of the Discloser’s information. Orchid Confidential Information also includes all Services (and any derivatives, performance data, benchmark results, security assessments, product roadmaps and any other technical information relating to the Software) created and developed by us and existing within the Services.
The Recipient shall (a) only use the Confidential Information of the Discloser to exercise its rights granted under these Terms and/or to perform under these Terms, (b) use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as it does for its own Confidential Information, but in no event less than reasonable care, and (c) limit access to the Discloser’s Confidential Information only to those employees, contractors, or agents who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified in this Section. The Recipient may disclose the Discloser’s Confidential Information to the extent required by any court, governmental body, or law or regulation, provided that, if legally permissible, Recipient shall provide prompt written notice to the Discloser of such disclosure.
12. Privacy and Data Use
All data collected in connection with your use of the Service, including, but not limited to, customer information and information about your business and employees used with or stored in or by the Service, is collected by Orchid. The Orchid Privacy Policy describes the collection, use, disclosure, and other practices of Orchid in connection with such data. You shall comply with all applicable laws pertaining to the collection, usage, sharing, security, privacy, protection, secrecy, disposal, and transfer of personal information, including laws regulating marketing, telemarketing, and unsolicited e-mails or text messages. You shall implement reasonable security controls to protect the personal information that you collect in connection with your ruse of the Service. You agree that you are responsible for all privacy and information security obligations and liabilities related to any data that you download, export, or otherwise transfer from the Service to your own environment. You shall ensure that any third parties with whom you share personal information in connection with your use of the Service will have appropriate information controls in place to comply with applicable law. You agree to maintain and make available to consumers a privacy policy applicable to your use of the Service. In exchange for your use of the Service you grant Orchid a worldwide, perpetual, royalty-free, irrevocable, nonexclusive, fully sublicensable license to use, reproduce, modify, adapt, and translate your data for purposes of your utilization of the Services, and for data collection and statistical analysis by us. This includes, without limitation, the right for Orchid to use inventory and sales transaction data to create analytic trends relating to economic and demographic behaviors of the supply chain, its members and consumers. You warrant that: (a) you have the right and authority to grant this license; (b) Orchid exercise of the rights granted pursuant to this license will not infringe or otherwise violate any third party rights; and (c) all so-called moral rights in your data have been waived to the full extent allowed by law.
13. Third Party Links and Services
The Services may provide links to third party software and web sites and access to content, products, and services of third parties, including, but not limited to, users, advertisers, affiliates, and sponsors. We do not control or endorse and are not responsible for any third-party content, websites, software products, or services accessed on or through the Services, or for any changes to such third-party content, websites, products, or services and you bear all risks associated with the access to, and use of such content, websites, products, or services provided by third parties.
14. Legal Compliance Guarantee
The Software and Services are provided to you to assist you with your obligations to comply with various laws (federal, state, and local) and regulations (ATF, Visa, MasterCard, etc.) regarding the operation of your business. Our software and Services may contain functionality to assist you in verifying the legality of certain firearms based on features, attributes, models and product names in relation to the location details provided by you or your customer to Orchid (collectively, “Compliance Services”). This does not include firearms that have been modified after the initial manufacturer sale or those that have been altered or omit features and attributes that would be needed to adequately perform the Compliance Services. Our software and Services also may contain functionality that will allow you to change or customize your pricing features for your customers (e.g., surcharging for card transactions) (collectively, “Pricing Services”). With regard to Compliance Services, we will use commercially reasonable efforts to attempt to make our Compliance Services complete and accurate, but we do not guarantee that our Compliance Services will insure 100% compliance with all applicable laws. With regard to Pricing Services, all legal and regulatory compliance obligations are your sole responsibility. We will not be responsible for any violations related to your use of the Pricing Services.
Furthermore, neither our Compliance Services nor our Pricing Services are legal advice, and you may only use our Compliance Services and Pricing Services as an aid in your efforts to enhance compliance with applicable laws, rules and regulations. We have implemented measures designed to help make our Compliance Services thorough and comprehensive, but neither these Compliance Services or any other compliance advice or services can assure you of complete accuracy and thoroughness. We cannot, and do not, guarantee you that by using our Compliance Services or the Pricing Services you will never be fined or commit any violation of applicable laws, rules, and regulations. In no event shall Orchid, its affiliates, suppliers, agents, or representatives be liable to you for any violation by you of applicable law, rule or regulation.
15. Warranty and Disclaimer
We provide the Content using a commercially reasonable level of care and promise to do our best to make sure your use of the Services is uninterrupted and the Service performs as expected. HOWEVER, THE SERVICES PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS, AND EXCEPT AS OTHERWISE PROVIDED HEREIN OR AGREED TO IN A SEPARATE WRITING, TO THE FULLEST EXTENT PERMITTED BY LAW, ORCHID SOLUTIONS DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR RESULT IN ANY OUTCOME, AND HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) WITH RESPECT TO THE SERVICES, ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED (WHETHER DUE TO INTERNET OR SERVICE CRASH OR FOR PLANNED MAINTENANCE) OR ERROR-FREE, AS WELL AS ALL WARRANTIES THAT WOULD OTHERWISE ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WE HAVE IMPLEMENTED MEASURES DESIGNED TO SECURE YOUR INFORMATION FROM ACCIDENTAL DESTRUCTION, LOSS, ALTERATION, AND FROM UNAUTHORIZED ACCESS, USE, ALTERATION, OR DISCLOSURE. HOWEVER, WE CANNOT GUARANTEE THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT THOSE MEASURES OR USE YOUR PERSONAL INFORMATION FOR IMPROPER PURPOSES. THE SERVICE IS USED AT YOUR OWN DISCRETION AND RISK. ORCHID SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SERVICES.
16. Limitation of Liability
IN NO EVENT SHALL ORCHID, ITS AFFILIATES, SUPPLIERS, AGENTS, OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUE, DATA OR DATA USE, ARISING FROM YOUR OR ANY THIRD PARTY’S USE OF THE SERVICES. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STATUTORY, STRICT LIABILITY, OR OTHERWISE) AND INCLUDES, WITHOUT LIMITATION, ANY (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA (WHETHER DUE TO HARDWARE FAILURE, SOFTWARE CRASH, OR THE FAILURE OF THE CLOUD SERVICE PROVIDER), COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS, OR SERVICES, (B) LOSS OF BUSINESS, REVENUES, PROFITS, OR GOODWILL, (C) WARNINGS, CITATIONS, OR REVOCATIONS OF LICENSES ISSUED BY ANY FEDERAL OR STATE GOVERNMENT OR AGENCY, (D) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (E) THE VIOLATION OF YOUR RIGHTS BY ANY THIRD PARTY. IN NO CASE SHALL DAMAGES EXCEED, IN THE AGGREGATE, IN EXCESS OF THE SUBSCRIPTION AMOUNTS PAID TO ORCHID SOLUTIONS (EXPRESSLY EXCLUDING INTEGRATION SERVICES COSTS ADDRESSED IN A SEPARATE WRITING) FOR USE OF AND ACCESS TO THE SERVICES DURING THE PREVIOUS 12 (TWELVE) MONTHS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREIN. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION.
17. Surcharge Functionality
You agree that prior to using Orchid’s Surcharge Functionality You will execute a separate, written agreement with Orchid authorizing the use of the Surcharge Functionality which shall contain certain acknowledgements and disclaimers specific to the Surcharge Functionality which shall be in addition to the Terms and Conditions contained herein.
18. Indemnification
Indemnification by You
You shall indemnify, defend, and hold harmless Orchid, and each of their officers, directors, employees, agents, subsidiaries, affiliates, suppliers, and representatives, from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, due to or arising out of your: (a) use or misuse of the Service; (b) violation of these Terms; (c) violation of any additional rules, guidelines, instructions, or terms of use or service level agreements posted for a specific part of the Service; (d) violation or infringement of any third party rights, including, but not limited to, claims or actions for violation of intellectual property rights caused by your modification, alteration, combination, integration, or enhancement not created by or at the direction of Orchid; (e) continuing any allegedly infringing activity after being notified thereof pursuant to our indemnification obligations below, or (f) use of the Service outside the scope of the license granted by these Terms. We reserve the right to assume the exclusive defense and control of any matter subject to your indemnification obligations, in which event you will assist and cooperate with Orchid in asserting any available defenses.
Indemnification by Us
We will indemnify, defend, and hold harmless you from any claim or action brought by a third party that the Service infringe a valid U.S. patent (issued as of the date of your first use of the Service), or any copyright or trade secret of such third party, excluding any activity or violation subject to your indemnification obligations above.
Indemnification Procedures
Should a claim or action come to our attention, Orchid Solutions may at our sole expense and discretion: (a) procure the right to allow you to continue using the applicable Service; (b) modify or replace the Service to become non-infringing, or (c) if (a) or (b) is not reasonable available, terminate these Terms upon written notice to you and refund to you a pro-rated amount of any pre-paid fees.
Each indemnitor’s indemnification obligations are conditioned upon the indemnitee giving the indemnitor prompt written notice of the claim and providing the indemnitor all reasonable assistance in connection with the defense or settlement of such claim, at the indemnitor’s cost and expense.
19. Errors
The Service may contain technical inaccuracies and typographical errors, including but not limited to inaccuracies relating to pricing or availability applicable to certain products or services offered by Orchid. Orchid shall not assume responsibility or liability and shall have no obligation to honor reservations or information affected by such inaccuracies. Orchid reserves the right to make changes, corrections, cancellations and/or improvements to any information contained within the Service, and to the products and programs described in such information, at any time without notice, including after confirmation of a transaction.
20. Publicity; Use of Your Name and Logo
You agree that upon subscribing to paid-for areas of the Software you authorize Orchid to use your name and/or logo solely for the purposes of advertising the Software via press releases, mass emails, website banners and popups, word of mouth, trade show marketing and advertising products and materials, or any other common marketing and advertising medium. Such use will be limited to identification of your company as a user of the Software to which you subscribed and shall not mention location of usage or any details regarding your usage of the Software which would naturally be deemed confidential. No further request by Orchid is required for such usage. Should you desire Orchid not use your name and/or logo for advertising the Software, you may submit a request to Orchid in writing at which point Orchid will terminate such usage or seek to negotiate favorable terms regarding usage of your name and/or logo with you.
21. Maintenance and Service Level Agreement (SLA)
Orchid will provide the following software maintenance and support services to all Orchid Software users provided they are active, paying customers and compliant with applicable laws and regulations.
- Software Maintenance and Upgrades
- Incident and Problem Resolution
- Telephone support on Monday – Friday from 8am to 7pm EST excluding office closures due to weather and other unavoidable office closings and holidays. Emergency support is available on the weekends for “S1” SLA issues.
- Monitored email support during operating hours via the form found on Orchid’s online support portal.
- Recurring data requests (e.g., after the first instance) caused by the customer and unrelated to software issues are subject to the prevailing rates for Orchid Advanced Technical Support / Data Assistance.
- Support tickets are assigned a priority for response times. The following is a general outline of typically assigned severity levels and target response times for your support requests. Resolution time is subject to the nature of the issue and other client or Orchid priorities.
Severity Level | Definition | Target Initial Response Time |
S1Urgent | System or API down; unable to process monetary or regulatory transactions (e.g., Can’t process a 4473 or POS checkout shut down) | Within 30 minutes |
S2Critical | Some part of system down / unable to use (e.g., Cannot receive in POS or eBound; ATF on-site reporting issue; Login) | Within 2 hours |
S3 | Non-regulatory / Non-monetary Time dependent request (e.g., Part Master, Vendor Master, Non-Inspection Related Reporting; NFA data request) | Within 24 hours |
S4 | Research on “One-off” transaction Issues; Miscellaneous system question (e.g., A single 4473 issue; Backup system re-installation request) | Within 3 Business Days |
S5 | Non-NFA Data Related Correction Request | Within 5 Business Days |
S6 | Data Correction, Data Load or Enhancement request (e.g., Duplicates; Data File Loads or New Feature Request) | Scheduled |
22. General Provisions
Entire Agreement
These Terms set forth the entire agreement between the parties with respect to the subject matter hereof and supersede all prior communications, negotiations, discussions, and agreements, either oral or written, between the parties with respect to the subject matter hereof. These Terms may be amended by Orchid at any time with or without notice and you may view any such revisions in the Service.
Assignment
Orchid may assign or transfer any of its obligations under these Terms with or without your prior written consent.
Choice of Law
These Terms shall be governed exclusively by the laws of the State of Connecticut, without regard to its conflicts of law provisions. Any dispute, controversy, contest, claim or other matter arising out of or in connection with these Terms or the interpretation or enforcement hereof shall be settled by binding Arbitration to be held in Hartford, Connecticut in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except either party may file suit or other proceeding in either state or federal court in Hartford, Connecticut with respect to any matter related to the protection or maintenance of intellectual property of either party or any third party. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, that provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
Waiver
Failure by Orchid at any time to enforce performance of any provision of these Terms will not constitute a waiver of such provision and will not affect or impair the enforceability of such provision or the right of Orchid at any time to avail itself of any remedies it may have for breach of such provision.
Third Party Beneficiaries
Except for Orchid’s affiliates and as otherwise stated herein, no persons shall be third party beneficiaries to these Terms.
Notice
Notices sent to your last known e-mail address or postal address as indicated in our records shall constitute effective notice to you under these Terms.
Force Majeure
In the event Orchid is unable to perform any of its obligations under these Terms because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of governmental or regulatory authorities, acts or omissions of carriers or suppliers, actions or decrees of governmental bodies or communication line failure not the fault of the affected party or other causes beyond such party’s reasonable control (a “Force Majeure Event”) Orchid will do everything possible to resume performance. Orchid’s obligations under these Terms will be suspended until such time the Force Majeure event concludes.
Injunctive Relief
The Service and Orchid’s intellectual property rights therein are of a unique and extraordinary nature. The unauthorized use or infringement upon those rights would cause Orchid irreparable harm which could not be adequately remedied by monetary damages. If you breach or threaten to breach Section 10 or otherwise infringe or threaten to infringe on Orchid’s intellectual property rights, Orchid has the right to seek and obtain injunctive relief on an expedited basis without the need to post a bond, security, or to prove actual harm.
Survival
All rights accruing prior to the expiration or other termination of these Terms will survive such expiration or termination. The obligations of the parties under Sections 5, 10, 11, 12, 14, 15, 16, 17 of these Terms, and under any other provision of these Terms whose context so permits, will survive expiration or termination of these Terms, as will this Section 21.
Professional Services Terms of Service
Updated March 2024
1. CONSULTING SERVICE. Company may retain Orchid to provide regulatory advisory services in conjunction with their use of Orchid’s software (the “Services”). If so requested pursuant to any purchase order or software or program subscription, Orchid will perform the Services for Company on the terms set forth in these Professional Services Terms of Service (“PSTOS”) and in a professional and workmanlike manner, in accordance with applicable law and prevailing practices in Orchid’s industry.
1A. COMPLIANCE ASSISTANCE PROGRAM™ SUBSCRIBERS. The Compliance Assistance Program™ (“Program”) is designed to provide limited support regarding certain regulated transactions that are inherently intertwined with the software provided by Orchid and is not designed or intended to provide the services of a contracted regulatory consultant. As such, Software subscribers who subscribe to the Program are expected to limit their time and scope of inquiries to a minimal expected range. In consideration of Orchid’s unparalleled regulatory knowledge and the professional services it provides to FFLs nationwide on a contracted basis, Company acknowledges the limited scope of the Program and agrees that should it engage Orchid beyond the expected levels that Orchid may contact Company to terminate its subscription to the Program and move it to a contracted services relationship or to the FFL Protection Program. ORCHID WILL CONTACT CUSTOMERS WHO CONSUME MORE THAN 120 MINUTES OF SERVICE PER MONTH FOR 6 CONSECUTIVE MONTHS TO DISCUSS MOVING THEM TO A DIFFERENT PROGRAM AND/OR AGREEMENT. ORCHID MAY IN ITS SOLE DISCRETION CEASE PROVISION OF ASSISTANCE UNDER THE PROGRAM SHOULD COMPANY EXCEED THE EXPECTED CONSUMPTION OF SERVICES IDENTIFIED ABOVE AND WHO DECLINE ENROLLMENT IN ANOTHER PROGRAM OR EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT.
2. TERM; TERMINATION. These PSTOS are effective upon Company’s subscription to Orchid’s software or their later election to utilize the Services and will continue until the earlier of (i) Company’s termination of the Services, or (ii) Company’s termination of use of Orchid software. Either party may terminate these PSTOS on written notice to the other party specifying the effective date of termination.
3. COMPENSATION. Company will pay Orchid for Services in accordance with their applicable subscription and/or purchase order and in accordance with the terms set forth herein. Orchid will invoice Company for amounts payable hereunder, and Company will pay Orchid invoices monthly via electronic ACH. Following termination of these PSTOS Company will remain obligated to pay Orchid for all services and reimbursable expenses incurred prior to termination.
4. MATTERS RELATED TO SERVICES. “Deliverables” means literary works or other works of authorship in any medium (such as documentation, reports and similar works) that Orchid is required to deliver to Company as part of the Services, including any specifically described in any documents provided by Orchid to Company or in a writing executed between Orchid and Company. The Company may share the Deliverables only with management, employees and directors of Company and its counsel. The Deliverables may not be relied upon for any purpose by any person other than Company or its advisers without the prior written consent of Orchid, not to be unreasonably withheld, conditioned or delayed. Orchid accepts no liability or responsibility to any person other than Company, who benefits from or uses the Services or gains access to any Deliverables. Orchid will retain sole ownership of all Pre-Existing Intellectual Property that is included in the Deliverables or upon which any Deliverables are based. “Pre-Existing Intellectual Property” means any and all procedures, forms, checklists, templates, software, designs, processes, improvements, techniques, formulas, procedures, ideas, innovations, inventions, systems, know-how, data, documentation, illustrations, literary properties, original works of authorship, derivative works and other material, whether patentable or not, that was developed, acquired, or otherwise obtained by Orchid prior to or independently from the provision of the Services. Orchid’s acceptance of an engagement to provide services to another person in the firearms, ammunition or any other related industry will not be deemed to be a conflict of interest. Company understands that it retains responsibility for all decisions related to, and implementation and ongoing modification of, policies, processes, models, systems, software, data, analytic reviews, legal interpretations, and risk management practice assessments, methods, and assumptions, if any, developed in the course of Orchid’s Services. Orchid is not a public accounting firm and does not issue opinions on financial statements or offer any attestation services. Orchid is not a law firm and does not issue legal opinions or render legal advice. No legal privilege attaches to communications between Orchid and the Company unless Company is advised otherwise by its counsel. Company is ultimately responsible for knowing and abiding by federal, state and local laws pertaining to any subject matter associated with the scope of Orchid’s engagement. Orchid provides operational consulting that includes assessments, project management, and recommended improvement activities related to people, processes, and technology. Assessments performed by Orchid may not be all encompassing as such assessment results may be driven by the scope of work with Company as well as the extent of review, nature of conversations with, and disclosures and representations made to, Orchid by Company. Company understands that there is no authoritative standard against which consulting services can be directly compared. Methodologies and approaches to measuring, managing and controlling people, process and system enhancements as well as risk events vary considerably. New and refined practices continue to evolve and the characterization of policies, procedures, or models as sound, “industry standard” or “best practices” is judgmental and subjective. Orchid will use commercially reasonable efforts to keep current with all industry standards and best practices applicable to Orchid’s business.
5. CONFIDENTIALITY; OWNERSHIP OF INFORMATION. Company may disclose Company’s confidential and trade secret information and materials concerning business plans and strategies, financial information, technology, experimental work, and related information of Company (“Confidential Information”). All Confidential Information will remain the sole property of Company and will be returned to Company on request. Orchid will protect the confidentiality of all Confidential Information disclosed to it and will use such Confidential Information only in connection with its services for Company. Orchid may use Company’s logo or name, without disclosing confidential information, to indicate its current and prior clients. This includes in oral, written, or web-based formats.
6. INDEMNIFICATION, LIABILITY AND WARRANTY. Orchid and Company will each indemnify, defend and hold harmless the other party for any claims or losses for bodily injury or damages to real or personal property resulting directly from the indemnifying party’s negligence or willful misconduct. Notwithstanding anything to the contrary in these PSTOS, Company and Orchid agree that, regardless of the legal theory asserted (including, but not limited to, breach of contract, warranty, negligence or tort), each party’s entire liability to the other or to any person asserting claims on behalf of or in the name of Company will not exceed the total amount of fees paid to Orchid for its Services. Neither party will be liable to the other party or any person asserting claims on behalf of or in the name of the other party for consequential, indirect, incidental, punitive or special damages of any nature suffered by Company or Orchid (including, but not limited to, lost profits or business opportunity costs), even if the parties have been advised of the possibility of such damages. Orchid makes no warranties whatsoever with respect to the Services.
7. ADDITIONAL TERMS. Orchid’s relationship with Company under these PSTOS will at all times be that of an independent contractor. These PSTOS will be governed by the laws of the State of Connecticut, without regard to its conflicts of law rules. All notices and other communications required or permitted to be given under these PSTOS will be in writing and deemed given if delivered by hand or sent by recognized overnight/express air courier service to the applicable party at the address designated above. These PSTOS and its attachments together set forth the entire agreement between the parties with respect to the subject matter hereof and supersede all prior communications, negotiations, discussions, and agreements, either oral or written, between the parties with respect to the subject matter hereof. These PSTOS may not be amended, supplemented, or otherwise modified except by a written document signed by both parties. Failure by either party at any time to enforce performance of any provision of these PSTOS will not constitute a waiver of such provision and will not affect or impair the enforceability of such provision or the right of either party at any time to avail itself of any remedies it may have for breach of such provision. All rights accruing prior to the expiration or other termination of these PSTOS will survive such expiration or termination. The obligations of the parties under Sections 3, 5, 6 and 7 of these PSTOS will survive expiration or termination of these PSTOS.