Last Revised: January 2016
This User Agreement strong governs your use of the Services. By clicking to accept or agree, where this option is made available to You by Us in the user interface or as part of the Order Form for any Service; or By actually using the Services, You agree to the following terms and conditions, and any policies, guidelines or amendments hereto that We may present to You from time to time (collectively, the “Terms”). You cannot and may not use the Services unless you agree to the Terms.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Orchestronix,” “We,” “Our” or “Us” refers to the legal entity, Orchestronix Corporation, with principal place of business at U-2010, Strata 100, F. Ortigas Jr. Ave, Ortigas Center, Pasig City.
“Order Form” means the documents for placing orders hereunder, including addenda and supplements thereto, that are entered between You and Us from time to time. An Order Form shall be deemed to incorporate by reference all of the Terms in this Agreement unless such Order Form specifically states otherwise, and may contain such other terms and conditions in addition to those contained herein.
“Services” means the products and services that are ordered by You under an Order Form and made available by Us online via a customer login link at Our website (www.orchestrack.com) and/or other web pages designated by Us.
“Software” means the software/s and software application platform provided to You as part of the Services
“You,” “Your” or “Yourself” means the company or legal entity for which you are accepting this Agreement and Affiliates of that company or entity.
2.1. In consideration of Your use of the Services, You represent that You are neither: (a) barred from receiving the Services under the laws applicable to Your location or other applicable jurisdiction, nor (b) under any pre-existing obligation in conflict or in any way inconsistent with the terms of this Agreement.
2.2. You may not use the Services and may not accept the Terms if (a) You are not a human being and/or intending to register an account by “bots” and/or other automated methods; or (b) You are Our direct competitor, except with Our prior written consent; or (c) if You access the Services for purposes of monitoring performance or for any other competitve purposes.
2.3. In order to access the Services, You may be required to provide information about Yourself (such as identification or contact details) as part of the registration process for the Service, or as part of Your continued use of the Services. You guarantee that any registration information You give to Us will always be accurate, correct, true and up-to-date.
2.4. You shall use the Services only for purposes that are permitted by (a) the Terms, and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdiction.
2.5. You shall not to access (nor attempt to access) any of the Services (a) by any means other than through the interface that is provided by Us, unless We have specifically granted you written permission to do so, or (b) through any automated means (including use of scripts or web crawlers).
2.6. You shall not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
2.7. You shall be responsible for any breach of Your obligations under the Terms and for the consequences of any such breach. You agree to hold Us free and harmless from any liability and shall indemnify Us from and against any third party claim in connection with (either direct or remote), resulting from, or as a consequence of Your use, abuse, performance, activity, or access of the Services or violation of the Terms, and thereby unconditionally undertake to defend and protect Us from all matters, actions, incidents, cases and the like, arising therefrom.
2.8. The Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of downloads You are permitted to make or extent of data to be included in the reports.
3.1. You are responsible for maintaining the confidentiality of any user account or password that You use to access the Services.
3.2. Accordingly, You will be solely and fully responsible for all activities that occur under such account as determined, noted or recorded by Us. Such determination, notation and record shall be at Our sole discretion, and shall serve as conclusive proof of the facts stated therein and to which they attest.
3.3. You shall notify us immediately of any unauthorized use of Your password or account or any other breach of security.
The Software which You use may automatically download and install updates from time-to-time from Us. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Us to deliver these to You) as part of Your use of the Services.
You shall pay all fees specified in all Order Forms hereunder and in accordance with the payment terms specified therein.
6.1. We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. You shall not (a) permit any third-party to access the Services except as permitted by Us in writing, (b) create derivative works based on the Services, nor copy, frame or mirror any part, data or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (c) reproduce, duplicate, sell, trade, resell or exploit for commercial purposes, any portion of the Services, use of the Services, or access to the Services, or any content or data obtained therefrom, (d) reverse engineer the Services, or (e) access the Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Services.
6.3. We give You a non-assignable and non-exclusive license to use the Software for the sole purpose of enabling You to use and enjoy the benefit of the Services that We provide, in the manner permitted by the Terms.
6.4. You may not (and may not allow any third-party to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, nor sell, assign, sub-license, grant a security interest in or otherwise transfer any right in the Software, unless this is expressly permitted or required by law or authorized by Us in writing.
6.5. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Services.
7.1. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your registration information; Our Confidential Information shall include the Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, (d) was independently developed by the Receiving Party, or (e) required to be disclosed pursuant to an order of competent government authority or otherwise required under any applicable law, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure to provide the Disclosing Party opportunity to contest the disclosure.
7.2. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and agrees (a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who have a bona fide “need to know” the information to fulfill the purposes under this Agreement and who are bound by confidentiality requirements at least as restrictive as those contained herein.
8.1. We warrant that: (a) We have validly entered into this Agreement and have the legal power to do so, and (b) the Services shall be provided in accordance with the requirements set forth in the applicable Order Form.
8.2. We are not responsible, and we make no representations or warranties for the delivery of any messages (such as in-mails, posting of answers or transmission of any other user-generated content) sent through Orchestrack to anyone. In addition, We neither warrant nor represent that Your use of the Services will not infringe the rights of third parties. Any material, service, or technology described or used on the website may be subject to intellectual property rights owned by third parties who have licensed such material, service, or technology to Us.
8.3. We disclaim all liability for any malfunctioning, impossibility of access, or poor use conditions of the Services due to inappropriate equipment, disturbances related to internet service providers or third-party carrier lines and facilities, to the saturation of the internet network, power failures, natural disasters and for any other reason that is beyond our control. We disclaim any liability for or relating to the integrity, security, confidentiality, delay, loss, corruption or use of any data while it is transmitted over third-party carrier lines and facilities.
8.4. THE WARRANTIES EXPRESSLY PROVIDED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE IN THE TRADE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA AND NON-INFRINGEMENT.
8.5. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.4. If You are dissatisfied or harmed by the Services or anything related thereto, You may close Your account and terminate this Agreement as provided hereunder, and such termination shall be Your sole and exclusive remedy.
9.1. This Agreement commences on the date You accept it and shall terminate:
(a) upon expiration of all subscriptions to the Services in accordance with the period stated in the applicable Order Forms; or
(b) without cause, by either Party, by providing the other Party with written notice of the intent to terminate this Agreement at least fifteen (15) calendar days prior to the intended date of termination.
9.2. Should you decide to terminate Your account pursuant to Section 8.4 above, You shall provide us with written notice of Your intent to terminate this Agreement at least fifteen (15) calendar days prior to the intended date of termination.
9.3. We reserve the right to terminate or suspend Your access to the Services immediately in the event we determine in our sole discretion that You have breached any of the Terms or any of the terms and conditions set out in an Order Form.
9.4. Upon termination of this Agreement or Your account, You lose access to the Services and all content or data associated with Your account will be deleted.
9.5. Sections 6, 7, 8, 9, and 10 herein shall survive expiration or termination of this Agreement.
10.1. Entire Agreement. This Agreement, including all Order Forms issued hereunder, constitute the entire agreement between the Parties and shall supersede any prior agreements, proposals or representations relating to the subject matter. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. In the event of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the provisions of such Order Form shall prevail.
10.2. Waiver and Severability of Terms. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right unless made in writing and signed by the Party against whom such waiver is sought to be enforced. If any provision of this Agreement is found to be illegal, unenforceable or invalid, such provision shall be modified and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in full force and effect.
10.3. Relationship of the Parties. The Parties are independent contractors and nothing in this Agreement shall be construed to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
10.4. Assignment. Neither Party may assign any of its rights or obligations hereunder without the prior written consent of the other Party.
10.4. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the Republic of the Philippines, and any legal action arising out of this Agreement or any breach thereof shall be brought and prosecuted in an appropriate court of competent jurisdiction within Quezon City, Philippines.