This Merchant User License Agreement (the “Agreement”) dated as of the date of acceptance by means of a click-through, is made by and among ORTY Inc. a Delaware Corporation (“ORTY”) and the entity designated by the registration data provided herewith (“Customer”) and applies to Customer’s use of software downloaded from ORTY and Customer’s use of services provided by ORTY (“ORTY Services”).
READ THIS LICENSE CAREFULLY BEFORE LOADING ANY SOFTWARE FROM ORTY OR USING THE ORTY SOFTWARE OR ORTY SERVICES. BY LOADING THE ORTY SOFTWARE OR USING THE ORTY SERVICES, CUSTOMER ACCEPTS AND AGREES TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.
ORTY RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT BY PROVIDING NOTICE OF CHANGES ON THE ORTY WEBSITE. CUSTOMER AGREES TO PERIODICALLY INSPECT THE ORTY WEBSITE TO STAY INFORMED ABOUT SUCH CHANGES. CUSTOMER AGREES THAT CUSTOMER’S CONTINUED USE OF THE ORTY SERVICE AFTER SUCH CHANGES ARE ANNOUNCED CONSTITUTES ACCEPTANCE OF SUCH CHANGES.
ORTY shall retain the ownership of the provided copy of ORTY software and the documentation provided therewith (referred to as a single entity, or as components, as “the Licensed Software”) which is licensed on a non-exclusive basis for use under the following conditions.
Subject to the terms hereunder, ORTY hereby grants to Customer a limited, non-exclusive, non-transferrable, revocable license, without the right to sub-license, to install and operate the Licensed Software and to operate an account on the ORTY website and related applications solely for the benefit of Customer and not for any third party, until the termination of this Agreement. Any rights not expressly granted hereunder are reserved. There are no implied rights of any kind. To the extent that the Licensed Software includes intellectual property rights of any third party (“Third Party Rights”), the license granted is to the extent that ORTY is able to license such Third Party Rights.
Free Account License
A free account includes access to one ORTY Register and ORTY BackOffice license for one location, one employee and up to US$5,000 in total sales of any tender type or combination of tender types per month. ORTY, at its sole discretion, may remove access, cancel or terminate your free account at any time for any reason. If Customer selects a credit card processing account, Customer agrees to operate one ORTY account solely with one credit card processing Merchant ID in connection with this section. Reasons for such termination include, but are not limited to, accounts experiencing a period of inactivity or exceeding the usage and sales limits contingent with a free account. ORTY also reserves the right to contact you at any time regarding your free account and your options to upgrade to a paid software plan.
Customer shall not (a) make copies of or further distribute the Licensed Software, including copying onto any other medium, (b) distribute, rent, sublicense, lease, resell, or assign the Licensed Software, (c) alter, modify or adapt the Licensed Software or the ORTY Services, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (d) export the Licensed Software without the appropriate foreign government licenses and without ORTY’s prior written approval, (e) resell, rent or otherwise provide access to the ORTY services to a third party or (f) take any action in an attempt to obtain any other ORTY user’s data, cause malfunction, crash, tamper with or otherwise impair the ORTY website and related applications, and their services. Any rights not expressly granted hereunder are reserved by ORTY.
No rights in the Licensed Software or ORTY Services are granted, whether expressly or by implication, including, without limitation, any rights in any patents, copyrights, trademarks or trade secrets embodied therein, except in connection with the permitted uses expressly described herein.
Customer agrees to timely pay the monthly fee set out in the order form, otherwise agreed by written agreement. Customer agrees to the Billing Policy, incorporated herein, and located here. Failure to comply with or otherwise pay fees due is a material breach of this agreement.
End Consumer Personally Identifiable Information
The term Personally Identifiable Information means individually identifiable information about an individual, including any of the following:
(1) A first and last name.
(2) A home or other physical address, including street name and name of a city or town.
(3) An e-mail address.
(4) A telephone number.
(5) Any other identifier that permits the physical or online contacting of a specific individual or their identification.
(6) Information concerning a user that the Web site or online service collects online from the user and maintains in personally identifiable form in combination with an identifier described in this section.
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED UNDER GOVERNING LAW.
CUSTOMER AGREES THAT THE LICENSED SOFTWARE AND ORTY SERVICES ARE PROVIDED “AS IS.” WITHOUT ANY WARRANTY OR CONDITION OF ANY KING, LEGAL, EXPRESS OR IMPLIED, ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, AND WHETHER AS TO MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO WARRANTY, CONDITION OR REPRESENTATION IS GIVEN, AND NO LIABILITY IS ACCEPTED, BY ORTY IN RELATION TO THIRD PARTY RIGHTS. ANY USE OF THE LICENSED SOFTWARE AND ORTY SERVICES IS AT CUSTOMER’S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL ORTY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS (“ORTY PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE ORTY SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, ORTY IS NOT RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR ORTY SERVICES, LOSS OF DATA, THE COSTS OF RECOVERING DATA, ANY LOSSES INCURRED ARISING IN ANY WAY FROM USE OF THE OFFLINE CREDIT PAYMENTS FEATURE, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS, LOSSES, OR DAMAGES YOU MIGHT INCUR. ORTY MAKES NO WARRANTY AND PROVIDES NO CONDITION OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE LICENSED SOFTWARE OR ORTY SERVICES FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DUE TO THE HIGH DEGREE OF VARIANCE IN SALES TAX COLLECTION, CALCULATION, AND REPORTING REQUIREMENTS FROM JURISDICTION TO JURISDICTION, ORTY MAKES NO GUARANTEE, AND PROVIDES NO WARRANTY, CONDITION OR REPRESENTATION, THAT THE EXPECTED SALES TAX DUE AMOUNTS IN REPORTS WILL BE THE SAME AS THOSE CALCULATED BY THE CUSTOMER’S TAX AUTHORITIES. ORTY PROVIDES AN ESTIMATE OF THE EXPECTED SALES TAX DUE SOLELY FOR THE CONVENIENCE OF THE CUSTOMER. GIVEN THAT CUSTOMER IS IN A BETTER POSITION THAN ORTY TO FORESEE AND EVALUATE ANY POTENTIAL DAMAGE OR LOSS WHICH CUSTOMER MAY SUFFER IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE AND/OR THE ORTY SERVICES AND THAT ORTY CANNOT ADEQUATELY INSURE ITS POTENTIAL LIABILITY TO CUSTOMER, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EXCLUSIONS AND LIMITATIONS CONTAINED HEREIN ARE REASONABLE. TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNENFORCEABLE, ORTY’S AGGREGATE LIABILITY SHALL NOT EXCEED $100. CUSTOMER SHALL ACT AT ALL TIMES TO MITIGATE ANY LIABILITY.
CUSTOMER ACKNOWLEDGES AND AGREES THAT SHARING OF ITS ACCOUNT INFORMATION, LOGIN INFORMATION OR PASSWORDS SHALL BE AT ITS SOLE AND ABSOLUTE RISK AND THAT ORTY SHALL NOT BE LIABLE FOR ANY DAMAGE ARISING AS A RESULT OF SUCH SHARING.
THE FOREGOING EXCLUSIONS AND LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
Some countries do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Customer may terminate this license at any time unless you have agreed to a longer purchase commitment period. ORTY, in its sole discretion, has the right to suspend or terminate this license and your account and refuse any and all current or future use of the ORTY Services for any reason at any time. Customer’s duties to (i) pay amounts due and payable, (ii) refrain from any kind of reverse engineering or other act in violation of this agreement or (iii) indemnify ORTY and the ORTY Parties shall survive termination or expiry of this Agreement. Upon termination or expiry, Customer will destroy all copies of the Licensed Software and documentation onto which the Licensed Software or documentation has been installed. Upon termination or expiry, ORTY shall terminate the Customer’s access to their ORTY account, the account itself and the data residing therein. CUSTOMER MUST EXPORT THEIR ACCOUNT DATA PRIOR TO TERMINATION OR EXPIRY OF THIS AGREEMENT. ORTY SHALL NOT BE RESPONSIBLE FOR CUSTOMER ACCOUNT DATA AFTER TERMINATION OR EXPIRY. In addition, ORTY reserves the right and Customer acknowledges such right for ORTY to terminate service of Customer’s account on 30 days’ notice if ORTY determines in its sole discretion that it is not capable of fully meeting the apparent requirements of Customer.
Customer agrees that the Licensed Software and the operation of the ORTY Services and its processes are the confidential information of ORTY and agrees not to disclose such software or such operation and processes to any third party. Customer agrees that breach of this duty of confidentiality shall cause irreparable harm to ORTY for which monetary damages would be difficult to quantify or insufficient and therefore ORTY shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond.
From time to time, ORTY will have Beta Software Programs (“Beta Program”) to make pre-release software, pre-release services, and related documentation, materials, and information (collectively, the “Pre-Release Software”) available to Beta Program participants for the purpose of providing ORTY with feedback on the quality and usability of the Pre-Release Software. The participants in a Beta Programs’ confidentiality obligations include, but are not limited to (a) the Beta Product (b) ORTY development or marketing plans that you learn about as part of your participation as a tester, (c) your participation in the Beta Program (d) verbal or written communications from ORTY employees, agents, contractors or other representatives regarding ORTY Materials and the Beta Product.
The Customer represents and warrants that it has the due right and power to enter into this Agreement, entering into this Agreement will not cause the breach of any agreement Customer has with a third party and that all of the registration information provided to ORTY is accurate in all respects.
Choice of Law and Forum
This Agreement shall be construed under the laws of Singapore. as applied to contracts performed entirely within the state. Any dispute arising under this Agreement shall be exclusively heard in the state or federal courts residing in Singapore. Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.
This Agreement (including the documents referenced herein) is the entire agreement between the Customer and ORTY and supersedes all prior agreements and understanding between the parties in respect of the subject matter hereof, whether written or oral.