Ordway Labs, Inc.
By signing the Ordway statement of work, service addendum, service order or similar-type document, you accept and agree to be bound by the terms and conditions in this Agreement (collectively the “Agreement”). The Agreement governs your relationship with Ordway Labs, Inc. (“Ordway”). Each party represents and warrants that it has read and understands all of the provisions of this Agreement. You must accept this Agreement before you can receive any Services (as defined, below). If you are entering this Agreement on behalf of a company or other legal entity, you represent and warrant that you have authority to bind such entity to this Agreement, in which case the terms “you” or “your” refer to such entity.
1.1 Provision of Services. Subject to the terms and conditions of this Agreement, including without limitation your payment of all of the undisputed fees due, Ordway will provide services through the Ordway platform (“Services”) in accordance with the terms of this Agreement and any terms and conditions provided for in an addendum, statement of work, or service order (each a “Service Order”). You may not use the Services in violation of the terms of this Agreement.
1.2 Support. Ordway will use commercially reasonable efforts to: (i) provide support for the Services, and (ii) make the Services available 24 hours a day, 7 days a week, except for scheduled maintenance and downtime.
1.3 Third Party Services. Pursuant to certain functionality offered by the services (and subject to change from time to time), you may direct Ordway to retrieve certain of your entity’s information maintained online by third-parties with which you have customer relationships, maintain accounts or engage in financial transactions (“Financial Information”). Ordway works with one or more online service providers to access this Financial Information, including, but not limited to, payment processors, accounting/ ERP and tax systems, and customer relationship management systems. Ordway makes no effort to review the Financial Information for any purpose, including but not limited to accuracy, legality or non-infringement and you represent and warrant that you have all of the necessary rights to allow the Financial Information to be provided and utilized by Ordway in connection with the services and as set forth herein. Ordway is not responsible for the products and services offered by or on third-party sites. Ordway cannot foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data settings or other service interruptions relating to the Financial Information. Ordway cannot and does not assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings relating to the Financial Information. For example, when displayed through the Services, Financial Information is only as fresh as the time shown, which reflects when the information is obtained from such sites. Such information may be more up-to-date when obtained directly from the relevant sites.
1.4 Account Protection. In the event that you become aware that the security of your login information has been compromised or breached, you must deactivate such account or change the account’s login credentials. Additionally, you shall promptly deactivate the account or change the login credentials for any individual (e.g., former employee) that no longer is authorized by you to access the Services.
1.5 Assistance. You shall provide Ordway with all information and assistance as reasonably requested and required for Ordway to activate and operate the Services. Further detail on your assistance can be found in the applicable Service Order.
1.6 Changes. Ordway reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Ordway’s Services to its customers; (ii) the competitive strength of or market for Ordway’s Services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
2. FEES AND PAYMENT
2.1 Fees. You shall pay Ordway the undisputed fees in the currency and as of the date set forth in each Service Order. You shall submit such payments as required in accordance with the payment instructions (e.g. payment address) provided in each invoice. All fees are exclusive of applicable sales, excise, or use taxes. Except for income taxes levied on Ordway’s net income, you shall pay or reimburse Ordway for all national, federal, provincial, state, local or other taxes and assessments of any jurisdiction, including sales or use taxes, data processing taxes, royalty taxes and amounts levied in lieu thereof which are legally payable by you for charges set, services performed or to be performed, or payments made or to be made hereunder. You shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to Ordway under this Agreement. This provision shall survive the termination of this Agreement and shall be applicable regardless of the time frame in which the requirement of the payment of such taxes or assessments is asserted (e.g. a deficiency assessment by a taxing authority as a result of an audit after the termination of this Agreement). Payments are due on receipt of invoice unless agreed otherwise by the parties in the applicable Service Order. You will notify Ordway of any invoice dispute within thirty (30) days of receipt of invoice, at which time the parties will engage in good faith efforts to resolve the dispute.
2.2 Late Payments. Your failure to pay undisputed fees when due constitutes a material breach of this Agreement. If payment is not made within thirty (30) days after the Ordway invoice due date, Ordway may, in its sole discretion, choose to suspend your access to the Services, during which time you will continue to be charged for any period of suspension. Ordway’s suspension or resumption of the Services does not limit or prevent Ordway from pursuing all other remedies available.
3. PROPRIETARY RIGHTS
3.1 Service Ownership; License; Retained Rights. Ordway owns all right, title, and interest in and to the Services, including, without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. Ordway grants you a limited, revocable, royalty-free, non-exclusive, non-transferable license to use the Services for the term of the applicable Service Order. You acknowledge that the rights granted under this Agreement do not provide you with title to or ownership of the Services, but only a right to use the Services subject to and under the terms and conditions of this Agreement. All rights not expressly granted to you hereunder are reserved by Ordway.
3.2 Restrictions. Unless otherwise permitted in writing by Ordway, you may not, and may not knowingly permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services; (ii) use, evaluate or view the Services for the purpose of designing or creating a product or service competitive to Ordway’s products or services; or (iii) resell, use the Services in a service bureau, or provide services for a third party in any manner.
3.3 Data Collection, Ownership, and Use.
3.3.1 Customer Data. Ordway acknowledges that, as between the parties, you own all right, title, and interest, including all intellectual property rights, in and to the Customer Data (“Customer Data”). “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that you, or a third party on your behalf, submit, post, or otherwise transmit through the Services. You hereby grant to Ordway a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
3.3.2 Aggregated Statistics. “Aggregated Statistics” means data and information related to your use of the Services that is used by Ordway in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. All right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Ordway. You acknowledge that Ordway may compile Aggregated Statistics based on Customer Data input into the Services. You agree that Ordway may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify you or your Customer’s Confidential Information.
3.4 Confidential Information. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. You acknowledge that the Services, the terms of this Agreement and any Services Order, and any other proprietary or confidential information provided to you by Ordway constitute valuable proprietary information and trade secrets of Ordway. Ordway acknowledges that the Confidential Information you provide to Ordway constitutes your valuable proprietary information and trade secrets. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with this Agreement, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party will have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section. Each receiving party agrees to promptly report any breaches of this section to the disclosing party. Notwithstanding the foregoing, Confidential Information does not include any information which (i) is now, or becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of this Agreement by the receiving party; (ii) was acquired by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
4. WARRANTY; LIMITATIONS OF LIABILITY; INDEMNITY
4.2 Your Warranty. You represent and warrant that (i) in relation to the Services, you will comply with all applicable laws, codes, regulations and ordinances in all material respects; (ii) you have any and all consents and authorizations as may be necessary for Ordway to provide the Services.
4.3 Warranty Disclaimer. EXCEPT AS SET FORTH HEREIN, ORDWAY DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING.
4.4 Limitations of Liability. THE LIMITATIONS OF LIABILITY IN SECTIONS 4.4.1 AND 4.4.2 WILL APPLY IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ALSO APPLY REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH DAMAGES ARE SOUGHT. IN NO EVENT WILL THE LIMITATIONS APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THE AGREEMENT. BOTH PARTIES SHALL USE REASONABLE EFFORTS TO MITIGATE THE DAMAGES FOR WHICH THE OTHER PARTY IS RESPONSIBLE. HOWEVER, IN NO EVENT WILL THE LIMITATIONS APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
4.4.1 No Special Damages. EXCEPT FOR CLAIMS ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION (“SPECIAL DAMAGES”), OF ANY PARTY, INCLUDING THIRD PARTIES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE FOREGOING.
4.4.2 Liability Cap. EXCEPT FOR CLAIMS ARISING OUT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR SECTION 3.2 – RESTRICTIONS, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID OR OWED BY YOU UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. IN NO EVENT WILL THIS LIMITATION APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THE AGREEMENT.
4.5 Your Indemnity. You shall indemnify, defend, and hold harmless Ordway, its officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement agreement, from a third party’s claim that arises out of your (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement[; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Ordway or authorized by Provider in writing; or (iv) modifications to the Services not made by Ordway.
4.6 Ordway Indemnity. Ordway shall indemnify, defend, and hold harmless you, your officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement agreement, from a third party’s claim that arises out of (a) Ordway’s breach of any applicable laws, regulations, codes or ordinances, including but not limited to privacy law; and (b) arising from a third party’s claim that the Services, as provided by Ordway to you within the scope of this Agreement, infringe any trademark, copyright or patent in the United States. Ordway has no liability to indemnify a claim of infringement to the extent it arises from: (i) infringing matter supplied or developed by you; (ii) unauthorized modifications or uses of the Services; or (iii) your acts or omissions not in accordance with the terms of this Agreement. If your use of the Services is enjoined or is likely to be enjoined due to a third party claim of infringement for which Ordway is required to indemnify you under this Agreement then Ordway may, at its expense and within its sole discretion, do one of the following: (x) procure for you the right to continue using the Services; (y) replace or modify the enjoined Service to make it non-infringing but functionally equivalent; or (z) terminate the enjoined Service and return any fees paid for enjoined Services not yet rendered.
4.6.1 The indemnification obligations set forth in this Section 4.6 are Ordway’s sole and exclusive obligations with respect to any IP claim for which Ordway has an obligation to indemnify you.
4.7 Indemnification Conditions. The indemnification obligations contained in this Agreement are conditioned upon: (a) notice by the indemnitee to the indemnitor of any claim, action or demand for which indemnity is claimed within fifteen business (15) days of the indemnitee receiving notice of such claim (failure to meet this condition does not exempt the indemnitor of its indemnification obligation, except to the extent that failure has materially prejudiced the indemnitor’s ability to defend the claim); (b) complete control of the defense and settlement by the indemnitor, provided that no settlement may be made without the consent of the indemnitee, such consent not to be unreasonably withheld or delayed; and (c) reasonable cooperation by the indemnitee in the defense as the indemnitor may request. The indemnitee has the right to participate in the defense against the indemnified claims with counsel of its choice and at its own expense but may not confess judgment, admit liability or take any other actions prejudicial to the defense. Further, the indemnitee may not settle an indemnified claim unless the indemnitor has declined to defend.
4.8 Proportional Liability. Each indemnitor’s liability to pay or reimburse any indemnified claim is limited to the extent of the indemnitor’s proportional contribution. Neither party has any liability to the extent that any losses in conjunction with indemnified claims are attributable to acts or omissions of the other party or its indemnities.
5.1 Term. This Agreement commences on the effective date of the first Service Order and continues for as long as there is at least one active Service Order. This Agreement automatically terminates in the event there is no active Service Order for three (3) months. However, the Agreement automatically becomes effective again in the event that a new Service Order is entered into by and between the parties.
5.2 Termination for Breach. In addition to any other remedies it may have, if either party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days after written notice from the non-breaching party, the non-breaching party may terminate this Agreement or a specific Service Order upon ten (10) days’ written notice. Upon termination of this Agreement or a Service Order due solely to a breach by Ordway, Ordway shall refund a pro rata portion of any fees paid for services not yet rendered as of the date of termination, not to exceed twelve (12) months of fees per Service Order. If this Agreement is terminated by Ordway due to a material breach by you, all Fees payable to be paid to Ordway for the remainder of the then-current Term shall be immediately due and payable to Ordway, and you shall promptly remit all such fees to Ordway.
6.1 Independent Contractors. In performing under this Agreement, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
6.2 Subcontractors. If Ordway subcontracts any portion of the Services or support, training or maintenance services to a third party, Ordway (i) shall require such subcontractor to comply with the material terms and conditions of this Agreement, and (ii) remains responsible for any acts or omissions of its subcontractors as if such acts or omissions were performed by Ordway.
6.3 Force Majeure. Neither party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, Third Party Sites, strikes, terrorism, failure of third party networks or the public Internet, power outages, industry-wide labor disputes or governmental demands or restrictions.
6.4 Assignment. Either party may assign this Agreement in connection with (i) a merger where the contracting entity does not survive such merger, or (ii) the sale of all or substantially all of the contracting entity’s assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection is void.
6.5 Notice and Delivery. Except as otherwise provided herein, all notices, statements and other documents, and all approvals or consents that any party is required or desires to give to any other party will be given in writing and will be served in person, by express mail, by certified mail, by overnight delivery, by facsimile, or by electronic mail at the respective addresses set forth below, or at such other addresses as may be designated by such party. Delivery will be deemed conclusively made (i) at the time of service, if personally served, (ii) five days after deposit in the United States mail, properly addressed and postage prepaid, if delivered by express mail or certified mail, (iii) upon confirmation of delivery by the private overnight deliverer, if served by overnight delivery, and (iv) at the time of electronic transmission (with successful transmission confirmation). Delivery of a copy of this Agreement, any Service Order, notice, or such other document bearing an original signature, by electronic mail in “portable document format” (“pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
If to Ordway:
Ordway Labs, Inc.
1707 L Street NW, Suite 850
Washington, DC 20036
Notices to you will be addressed to the contact designated in writing by you to Ordway for your relevant account, and in the case of billing-related notices, to the relevant contact designated by you.
6.6 Miscellaneous. This Agreement is governed by the laws of the District of Columbia (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). This Agreement, including the exhibits attached hereto, and each Service Order constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. An amendment to this Agreement is only valid if in writing and acknowledged by an executive or duly-authorized representative of both parties. Nothing contained in any purchase order or other document will in any way modify this Agreement or add any additional terms or conditions. If any provision of this Agreement, or the application thereof, is for any reason and to any extent determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original will be substituted and the remaining provisions of this Agreement will be interpreted so as best to reasonably affect its original intent. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver. Any provision of this Agreement, which contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, confidentiality, limitation of liability and indemnification provisions) survive termination or expiration of this Agreement and continue in full force and effect. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. If an ambiguity or a question of intent or interpretation arises, this Agreement is to be construed as if the parties had drafted it jointly, as opposed to being construed against a party because it was responsible for drafting one or more provisions of this Agreement.
Last updated: April 12, 2021