TERMS OF SERVICE
- Acceptance of Terms
- Orchid Representatives
For purposes of these Terms of Service, Orchid representatives include, but are not limited to, National Shooting Sports Foundation (“NSSF”), National Association of Sporting Goods Wholesalers (“NASGW”), American Suppressor Association (“ASA”), and National Rifle Association (“NRA”) Business Alliance.
- Description of Site
The Site provides access to a variety of resources and information, including, but not limited to: (a) software and software as a service offerings (“Software”); (b) web pages, data, messages, text, images, photographs, graphics, audio, video, webcasts, and documents such as press releases and white papers (“Materials”); and (c) compliance tools, education, and other business aids and documents (“Information”). Software, Materials, Information, and other content and services are collectively referred to as “Content.” Content is not legal advice and there are no representations or warranties that the Content is current or complete.
- Terms Applicable to Specific Content and Areas of the Site
Specific Content or areas of the Site may have additional rules, guidelines, agreements, or terms and conditions that apply to Your access to or use of that Content or area of the Site. To the extent there is a conflict or inconsistency between these Terms of Service and the rules, guidelines, agreements, or terms and conditions for specific Content or areas of the Site, the latter shall prevail with respect to Your access to and use of that Content or area of the Site.
- Registration Obligations
In consideration of Orchid providing access to and use of the Content You agree to: (a) provide current and complete information about Yourself, Your organization, and other users within Your organization as requested by Us (“Registration Data”); and (b) maintain and update the Registration Data to keep it current and complete. In addition, You agree that in order to keep You informed of Orchid business items, events, and updates to the Site We may send email-based communications to You and other users within Your organization on a periodic basis. You agree that receiving these emails is part of Your use of the Site and should You desire to not receive these emails You must advise Orchid in writing or by email.
- Your Accounts
You may be required to create an account and specify a username and password in order to access or use certain Content. You may not share Your account with anyone else. Usernames and passwords are to be kept confidential. You are responsible for exiting Your account at the end of each session to avoid any unwanted breach. You are responsible for all activities that occur on the Site through the use of Your username and password. If You believe Your account has been compromised at any time, You agree to notify Us immediately. We are not liable for any loss or damage arising from Your failure to comply with this Section.
An account may be assigned to You by an administrator, such as Your employer. Your administrator may be able to access, modify, suspend, or terminate Your account without Our involvement and We shall not be liable for any adverse impact from such access, modification, suspension, or termination, nor shall We be required to intervene and provide services or access to the Site or Content in the event of such access, modification, suspension, or termination of Your account by Your administrator.
You are responsible for obtaining access to the Site. That access may involve third-party fees (such as internet provider or airtime charges) for which You are solely responsible. You are responsible for all equipment, hardware, and software necessary to access the Site and Content.
- Access to and Use of the Site and Content
Subject to the terms and conditions of this Agreement, during the applicable license term, Orchid hereby grants to You a non-exclusive, non-transferable and non-sublicensable license for You to access and use the Content solely for Your internal use for Your ordinary business operations. You may provide access to the Content to Your employees, contractors, and other individual users to access and use the Content on Your behalf and for Your internal business purposes in compliance with this Agreement, provided that: You are responsible for all such users’ actions that violate the terms of this Agreement; any breach by any such user is a breach by You; and no such user is an employee or contractor of an Orchid or Orchid eBound™ competitor. You are entitled to utilize the Content for a single physical business premises. Creation of user accounts for other premises and utilization of the Content for other premises is an explicit breach of this Agreement, absent a separate writing executed by You and Orchid. Access may be temporarily interrupted by events such as upgrades to the Content, unexpected computer crashes, or natural disasters or other acts of God at the data center. We will make Our best efforts to provide continuous and uninterrupted access to the Site and Content and to provide any advance notice when it is known that the Site or Content will be unavailable for any period of time. You agree that Your use of the Content is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written, public or private, comments made by Us with respect to future functionality or features. You are responsible for the proper utilization of all Content as may be required by law or regulation. You understand and agree that the Content is accessed via the Site and We may, but have no obligation to, permit access to or use of the Content in any other manner, including locally stored copies of the Content.
- Prohibited Uses
- Publicity; Use of Your Name and Logo
You agree that upon subscribing to paid-for areas of the Site and Content You authorize Us to use Your name and/or logo solely for the purposes of advertising the Site and Content 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 Site or Content and the Content to which You subscribed, and shall not mention location of usage or any details regarding Your usage of the Site or Content which would naturally be deemed confidential. No further request by Us is required for such usage. Should You desire We not use Your name and/or logo for advertising the Site or Content, You may submit a request to Us in writing at which point We will terminate such usage or seek to negotiate favorable terms regarding usage of Your name and/or logo with You.
We reserve the right in Our sole discretion to modify Our Sites and the Content at any time, with or without notice to You. Modifications may take the form of addition, modification, or removal of certain functionality, features, data, documents, images, information, or software.
- Payment, Term, and Termination
You will pay the fees for the Site and/or Content according to the selection You made during the initial account registration process, or, alternatively, according to a separate written agreement between You and Orchid. Fees are charged in advance for a monthly term unless otherwise agreed between You and Orchid in a separate writing. You are obligated to keep current Your credit card information on file to enable payment processing. Should You fail to make payment on time, We reserve the right to terminate or suspend Your account and withhold access to the Site and/or Content immediately with or without providing notice to You. Delinquent accounts shall be required to make payment in full prior to resumption of service. Payments for professional services provided by Orchid or Orchid eBound™ to enable access to or use of the Site and/or Content (e.g., API connection services) shall be made according to the terms of a separate services agreement. We reserve the right to immediately terminate or suspend Your account and access to the Site and/or Content should payment to Orchid or Orchid eBound™ not be made according to the terms of the applicable services agreement.
- Cancellation and Refunds
You may terminate Your subscription and this Agreement at any time. To cancel, the administrator of Your account must log in and access their account settings. Any content, data, documents, images, or other information entered by You into and held within the Site and/or Content may be immediately deleted upon cancellation. ORCHID EBOUND BOOK USERS WHO CANCEL THEIR ACCOUNTS MUST EXPORT THEIR RECORDS PRIOR TO CANCELLATION; YOU WILL NOT BE ABLE TO ACCESS YOUR A&D BOOK HISTORY FOLLOWING CANCELLATION OF YOUR ACCOUNT. We disclaim all liability for loss of any such information due to account cancellation. If You cancel Your account prior to the end of Your current monthly payment cycle, Your cancellation will take effect immediately and You will not receive any refunds for amounts already paid.
- 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 Site and Content, 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 Site or Content, (b) evaluations, and (c) other feedback, information and reports provided to Us hereunder (collectively, “Feedback”), will be the property of Orchid, and You shall and hereby do assign any rights in such Feedback to Orchid.
- Your Data
You agree that You will only upload, share, post, publish, transmit, or otherwise make available (“Share”) on or through the Site or Content information and data (“Your Data”) that You have the right and authority to Share and for which You have the right and authority to grant to Us all of the licenses and rights set forth herein. You retain all ownership rights to Your Data not expressly waived by this Agreement. By Sharing Your Data, You grant Us 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 Site and Content, and for data collection and statistical analysis by Us. This includes, without limitation, the right to incorporate or implement the statistical analysis or generic analytical details of Your Data into any Orchid product or service provided the information contained within Your Data is not made available to third parties by Us nor attributable to You even in generic format. You warrant that: (a) You have the right and authority to grant this license; (b) Orchid’s 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.
We are not obligated to provide any services, configuration, documentation, guidance, or advice regarding integration of the Content with any of Your IT systems (ERP, POS, or otherwise). Any integration and services, configuration, documentation, guidance, or advice pursuant thereto shall be addressed in a separate writing between the parties to this Agreement. This Agreement is applicable to use of the Site and Content if integrated or connected to Your systems via an API, however, in the event of a conflict in terms between an integration services agreement and this Agreement, the terms of the services agreement shall control.
- Third Party Links
The Site and Content contained within may provide links to web sites and access to content, products, and services of third parties, including, but not limited to, users, advertisers, affiliates, and sponsors of the Site. We do not control or endorse and are not responsible for any third party content, websites, products, or services accessed on or through the Site 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.
- Warranty and Disclaimer
We provide the Content using a commercially reasonable level of care and promise to do Our best to make sure You enjoy the Content. HOWEVER, THE SITE AND CONTENT ARE 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 DOES NOT WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR RESULT IN ANY OUTCOME, AND HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) WITH RESPECT TO THE CONTENT, 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 OR ERROR-FREE, AS WELL AS ALL WARRANTIES THAT WOULD OTHERWISE ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. ANY CONTENT ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED ON OR THROUGH THE USE OF THE SITE 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 SITE OR CONTENT.
- 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 Site or Content. 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, or (f) damages, in the aggregate, in excess of the subscription amounts paid to Orchid (expressly excluding integration services costs addressed in a separate writing) for use of and access to the Site or Content 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 this agreement 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.
Indemnification by You
Indemnification by Us
We will indemnify, defend, and hold harmless You from any claim or action brought by a third party that the Site or Content infringe a valid U.S. patent (issued as of the date of Your first use of the Content), or any copyright or trade secret of such third party, excluding any activity or violation subject to Your indemnification obligations above.
Should a claim or action come to Our attention, We may at Our sole expense and discretion: (a) procure the right to allow You to continue using the applicable Content; (b) modify or replace the applicable Content to become non-infringing, or (c) if (a) or (b) is not reasonable available, terminate this Agreement 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.
“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 and Orchid Software Portal Confidential Information also includes all Software (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 on the Site. The terms and conditions of this Agreement are the Confidential Information of both parties.
The Recipient shall (a) only use the Confidential Information of the Discloser to exercise its rights granted under this Agreement and/or to perform under this Agreement, (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.
Neither party may assign this Agreement without the prior written consent of the other party, provided, however, either party may do so to a successor-in-interest pursuant to a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this section shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
The failure of any party to this Agreement to enforce the breach of term of this Agreement upon the other party shall not be considered a waiver of that term or any other term of this Agreement.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
This Agreement may only be amended, or any term or condition set forth herein waived, by a writing signed by both parties.
- Export Compliance
Content made accessible on the Site under this Agreement or data, content, images, documents, or other information uploaded to the Site or Content by You may be subject to United States export control laws and regulations and may also be subject to the laws of the country where You reside (“Export Controlled Information”). You agree to comply with all relevant export laws and regulations, including those of the United States and any other applicable jurisdiction and not to transfer or otherwise export any Export Controlled Information in violation of such laws, including, without limitation, transfers without an export permit approved by the relevant government agency, or transfers to parties identified on any list maintained by the Federal Government identifying individuals subject to US export restrictions.
Sections 9, 11, 12, 13, 14, 17, 18, 19, 20, 23, 24, and 28 shall survive any termination or expiration of this Agreement.
- Governing Law and Jurisdiction
This Agreement and all claims or causes of action that may be based upon, arise out of or relate to this Agreement will be construed in accordance with and governed by the laws of the State of Connecticut applicable to agreements made and to be performed entirely within such State without regard to conflicts of laws principles thereof that would cause the application of the laws of any jurisdiction other than the State of Connecticut. Any dispute arising under or in connection with any matter of any nature (whether sounding in contract or tort) relating to or arising out of this Agreement, shall be resolved exclusively by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered into any court having jurisdiction thereof.
- Contact Information
We accept any requests and suggestions regarding errors in and improvements of the Site and Content. Such requests, any technical help inquiries, and any account questions may be addressed to: firstname.lastname@example.org.
- Entire Agreement
This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Unless a term herein otherwise provides, any inconsistent or additional terms on any related agreement, even if signed by the parties to this Agreement shall have no effect under this Agreement.