Master Software License Agreement
This Master Software License Agreement (“Agreement”) is entered into by and between Orbital Labs, LLC (“Orbital” or “Licensor”) and you (“Customer”) and is effective as of the last signature date set forth below (“Effective Date”). As used in this Agreement, “Party” means either Orbital or Customer, as appropriate, and “Parties” means both Orbital and Customer.
The “Service Start Date” of this Agreement is the date which is the earlier of: (a) the license delivery date; or (b) the Subscription Term start date as set out in the Order.
WARNING: Licensing terms
A breach of these licensing terms may also constitute a violation of company or employer policies. It is your responsibility to ensure that you are in compliance with all applicable policies and laws, and that you have the authority to enter into this agreement.
U.S. Public Sector Amendment
If you are a U.S. Government Entity, please see the U.S. Public Sector Amendment.
1. SUBSCRIPTION SERVICE; SOFTWARE LICENSE; USE
This Agreement is a master agreement under which Customer, its employees or a authorized contractors may license from Orbital the OrbStack software, in both a downloadable form (the “Software”) and as a software-as-a-service, as is then currently offered by Orbital (the “Subscription Service”), and any online services offered by Orbital (the "Online Services") (collectively, the “Orbital Technology”), and receive maintenance and Professional Services (as defined in Section 2.2 below) requested by Customer in respect of such Orbital Technology. This Agreement shall be implemented through one or more order forms (each, an “Order”) that set forth the Orbital Technology to be licensed by Customer and the term of such license (the “Subscription Term”). Each Order shall set forth the Fees (as defined in Section 3.1 below) for such Orbital Technology, and certain other terms applicable to such Orbital Technology. Absent the execution of an Order, this Agreement does not, in and of itself, represent a commitment by Customer to order, receive or pay for any products or services of Orbital. This Agreement sets forth the terms and conditions applicable to all such Orders. Any Order executed under this Agreement will be a part of this Agreement as if fully included within its body.
1.2 License Grant
Subject to Customer’s compliance with this Agreement, including the timely payment of all applicable Fees, Orbital hereby grants to Customer a limited, non-exclusive, revocable, non-transferable (except as set forth in Section 9.2 (Assignment) license (the “License”) to access, download (as applicable) and Use (as defined below) the Orbital Technology during the Subscription Term described in each Order, together with documentation generally provided with the Orbital Technology, as revised from time to time, which may include end user manuals, operation instructions, installation guides, release notes and online help files regarding use of the Software (collectively, the “Documentation”), any updates to the Orbital Technology (“Updates”) made by Orbital during the Subscription Term, solely for Customer’s internal use and business purposes and subject to the Documentation. “Use” means that Customer may access, utilize or otherwise interact with the Orbital Technology by up to the number of users to which Orbital provides licenses, as indicated in each Order (“Authorized Users”). Each such individual shall be assigned a unique Authorized User identification, and the number of Authorized Users and their user level shall be specified in the applicable Order. Multiple individuals may not share the same Authorized User identification. Authorized Users are limited to the number set forth in the respective Order, and access to the Orbital Technology will be restricted to such number of Authorized Users through a license management portal provided by Orbital. Customer is responsible for activity occurring under its Authorized User accounts and shall ensure that it and its Authorized Users abide by all local, state, national and foreign laws, treaties, and regulations applicable to Customer’s use of the Orbital Technology. The Customer will be solely responsible for any decisions made or actions taken in connection with its usage of the Orbital Technology. Customer shall: (i) notify Orbital promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) notify Orbital promptly and use reasonable efforts to promptly stop any unauthorized use, copying, or distribution of the Orbital Technology that is known or suspected by Customer or its Authorized Users; (iii) not impersonate another Orbital user or provide false identity information to gain access to or use the Orbital Technology. During the Subscription Term, Orbital hosts software for the cloud service and the Customer has no contractual right to take possession of the software or the right of software hosting at any time.
1.3 Restrictions; Usage Limits and Audits
a) Restrictions. Customer and Customer’s employees shall not, and shall not allow any third party contractors delivering information technology services to Customer (“Third Party Agents”) to: (i) decompile, disassemble, decode, redesign, reverse engineer, or attempt to reconstruct or discover any source code, algorithms, architecture, or other elements of; (ii) translate, adapt, modify or create derivative works from; (iii) write or develop any program based upon; (iv) use for ‘service bureau’ purposes; (v) sell, sublicense, transfer, or otherwise assign or grant to any third party any rights in; (vi) allow access to unauthorized persons to; or (vii) otherwise use except as expressly permitted hereunder, in each case of (i) – (vii), the Orbital Technology, Documentation, and Orbital’s Confidential Information (as defined in Section 5 below), as applicable. Customer is fully responsible for its Third Party Agents’ compliance with the terms and conditions of this Agreement and any breach of this Agreement by a Third Party Agent shall be deemed to be a breach by Customer.
b) Usage Limits. If specified in the applicable Order, Customer may have certain usage limits, which if exceeded, could subject Customer to increased Fees.
c) Audits. Orbital reserves the right to audit the number of Authorized Users, number of Connectors, Apps, objects, and Customer usage on a quarterly basis. Customer agrees to provide reasonable assistance with such audits, which shall be as minimally invasive as possible. Without limiting the foregoing and with two (2) days prior written notice, Orbital shall have the right to remove any unauthorized users to the Orbital Technology that Orbital finds to be in violation of the number of Authorized Users specified under the applicable Order.
1.4 Proprietary Rights
a) Orbital Intellectual Property. Orbital Technology is licensed and not sold. As between Orbital and Customer, Orbital hereby retains all right, title, and interest, including all intellectual property rights, in and to the Orbital Technology, all copies and portions thereof, and all improvements, enhancements, modifications, and derivative works thereof, and all intellectual property rights therein. As a condition of the License, Customer must retain all proprietary, copyright and other attribution legends on all copies of the Orbital Technology. Customer agrees that Orbital shall have the right to use in any manner and for any legal purpose any feedback or suggestions which Customer may provide to Orbital.
b) Customer Data. “Customer Data” is defined as any data that the Customer or its Authorized Users submit to the Online Services, excluding the downloadable form of the Software. As between Customer and Orbital, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that it has and will have all rights and consents necessary to allow Orbital to use all such data as contemplated by this Agreement. Customer hereby grants to Orbital a royalty-free, fully paid, non-exclusive, non-transferable (except as set forth herein), non-sub-licensable, worldwide right to use and process Customer Data to provide the Orbital Technology to Customer, and to develop, test and improve the Orbital Technology and any other activities expressly agreed to by Customer.
1.5 Additional Users and User Reassignment
Additional Authorized Users may be purchased pursuant to the Parties signing an Order and unless otherwise specified in the relevant Order, the Subscription Term of additional Authorized Users shall be coterminous with the Subscription Term in effect at the time the additional Authorized Users are added. Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one person but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require use of the Orbital Technology. Unless otherwise specified in the relevant Order, the replacement Authorized User shall be under the same Subscription Term of the original Authorized User.
1.6 Security and Data Privacy
1.7 Usage Data
Orbital may access and utilize usage data to maintain and improve the Orbital Technology, provided that such data is aggregated or otherwise anonymized and the Customer or the Authorized Users will not be identified. Customer agrees that Orbital may collect and use metadata derived from Customer’s use of the Orbital Technology for the sole purpose of improving Orbital Technology. All metadata collected and used will be in aggregate form only and will not identify Customer or its Authorized Users.
2. SUPPORT; SERVICE LEVELS
Subject to Customer’s timely payment of all applicable Fees, during the period set forth on each Order (the “Support Term”), Orbital will provide to Customer the support services (“Support” or “Services”), if any, set forth on each Order. Support questions or concerns can be sent to at firstname.lastname@example.org.
2.2 Service Levels
During the Subscription Term, the Subscription Service will be provided on an as-is basis. Orbital does not guarantee any specific level of service or uptime. The service is not subject to a Service Level Agreement (SLA) unless otherwise negotiated. Orbital reserves the right to modify the service to reflect new features or changing practices.
3. FEES; PAYMENT
Customer will pay Orbital the non-refundable and non-recoupable (except as otherwise provided for herein): (i) fees for the Orbital Technology and Support set forth in any Order (“Subscription Fees”); and (ii) all other mutually agreed upon fees set forth in any Order (“Other Fees”), collectively the “Fees”. Failure to use the Orbital Technology or Services does not constitute a basis for refusing to pay any Fees.
3.2 Payment Terms
Unless otherwise set forth on an Order, or unless disputed in good faith, invoices are due and payable in United States dollars within thirty (30) days after the invoice date, without deduction or setoff. For past due undisputed Fees, interest accrues from the payment due date at the greater of a rate of 1.5% per month or the highest rate allowed by law.
Where the Customer disputes any amount invoiced in good faith, it will: (i) notify Orbital as soon as reasonably practicable, however, not later than five business days after receipt of the relevant invoice; (ii) pay the balance of the invoice that is not in dispute by the due date; and (iii) pay the balance and any interest as set out in Clause 3.2 on sums found or agreed to be due within five business days after resolution of the dispute.
Customer must pay all federal, state, local, sales, use, lease, value added, excise, or other taxes, fees, or duties arising out of this Agreement, or the transactions contemplated by this Agreement (other than taxes based on Orbital’s net income) and will indemnify Orbital for all expenses incurred as a result of Customer’s failure to timely pay thereof. It is Customer’s responsibility to submit any relevant tax documents at the time of execution of the applicable Order to Orbital, in order for Orbital to bill taxes accordingly.
3.5 Affiliate Orders
The Parties agree that Affiliates of Customer may execute its own Order or Orders with Orbital, as mutually agreed by the parties. This will create a separate agreement between Orbital and the Affiliate incorporating the terms of this Agreement whereby the Affiliate shall be deemed “Customer”. Neither Customer nor Customer’s Affiliate shall have any rights under each other’s agreement with Orbital and a breach or termination of any such agreement will not result in a breach or termination of any other agreement. An “Affiliate” is any entity directly or indirectly controlled or owned by a party where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
4. TERM AND TERMINATION
This Agreement will start on the Effective Date and will continue until terminated pursuant to Section 4.2 or 6.1(iv) below.
Either Party may terminate this Agreement by written notice if: (i) the other Party is in material breach of this Agreement (including non-payment), which is not cured within thirty (30) days after written notice of such breach is received; (ii) the other Party ceases to operate without a successor; (iii) the other Party seeks protection under bankruptcy or comparable proceedings; or (iv) the other Party makes an assignment for the benefit of its creditors, or takes similar actions.
4.3 Effect of Termination
Upon the effective date of expiration or termination of this Agreement for any reason, Customer must cease use of the Orbital Technology and: (i) all outstanding Orders, and the corresponding Licenses shall automatically and immediately terminate, Orbital may disable access keys, and Customer will have no further rights to the Orbital Technology; (ii) all outstanding payment obligations of Customer immediately become due and payable; and (iii) each Party must promptly return or certify the destruction of all tangible embodiments of the other Party’s Confidential Information. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.3 (Restrictions), 1.4 (Proprietary Rights), 3 (Fees; Payment), 4.3 (Effect of Termination), 5 (Confidentiality), 6 (Indemnification), 7 (Warranty Disclaimer), 8 (Exclusion of Certain Damages; Limitation of Liability), and 9 (General Provisions).
“Confidential Information” means: (i) any information disclosed, directly or indirectly, by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that is designated as “confidential”, or in some other manner to indicate its confidential nature; and (ii) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the Orbital Technology and the terms (but not the existence) of this Agreement are the Confidential Information of Orbital. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
5.2 Limited Use; Protection
Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other Party, except to employees or contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to an obligation of confidentiality. Each Party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other Party and will take at least those measures that it takes to protect its own most highly categorized confidential information.
5.3 Compelled Disclosure
If a Receiving Party is compelled by law or a court of competent jurisdiction to disclose the Disclosing Party’s Confidential Information, the Receiving Party will, where permitted by law, promptly notify the Disclosing Party in writing and will, where permitted by law, reasonably cooperate with the Disclosing Party in seeking a protective order or other appropriate remedy at the Disclosing Party’s expense. If disclosure is ultimately required, the Receiving Party will furnish only that portion of Confidential Information that is legally required and will exercise reasonable efforts to obtain assurance that it will receive confidential treatment.
6.1 IP Indemnification
Orbital shall defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Orbital Technology as delivered to Customer and used as authorized in this Agreement and Documentation infringes or misappropriates any U.S. patent, copyright or trade secret of any third party (“Infringement Claim”), and pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Orbital; provided that Customer provides Orbital: (a) prompt written notice of the Infringement Claim; (b) sole control over the defense and settlement of the Infringement Claim; and (c) all information and assistance reasonably requested by Orbital in connection with the defense or settlement of, any such Infringement Claim. If any Infringement Claim is brought or, in Orbital’s judgment, may be threatened, Orbital may, at its sole option and expense: (i) procure for Customer the right to continue to use the applicable Orbital Technology; (ii) modify the Orbital Technology to make it non-infringing; (iii) replace the Orbital Technology with non-infringing technology that is functionally equivalent to the Orbital Technology; or (iv) if none of the foregoing is commercially practicable, terminate this Agreement upon written notice to Customer, and refund a pro rata portion of unused and pre-paid Fees for the outstanding balance of the then current Subscription Term.
Notwithstanding Section 6.1, Orbital will have no liability to Customer for any Infringement Claim arising out of or based upon: (i) use of the Orbital Technology in combination with software, products, or services not provided by Orbital; (ii) any modification of the Orbital Technology not made or authorized in writing by Orbital; (iii) Customer’s failure to use the Orbital Technology in accordance with this Agreement or Documentation, or otherwise using the Orbital Technology for purposes for which it was not designed or intended; or (iv) use of any specified release of the Orbital Technology after Orbital notifies Customer that continued use of such release may subject Customer to an Infringement Claim, if Orbital provides a replacement release.
THE FOREGOING PROVISIONS OF THIS SECTION 6 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ORBITAL, AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT CLAIM.
6.4 Indemnification by Customer
Customer shall (i) indemnify, defend, or at its option settle, and hold Orbital and its affiliates harmless against any and all claims brought against Orbital and its affiliates by a third party relating to (a) Customer Data and/or (b) Customer’s use of the Orbital Technology other than pursuant to this Agreement and the Documentation; and (ii) pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Customer; provided that Orbital provides Customer: (x) prompt written notice of any such claim; (y) sole control over the defense and settlement of (except that Customer may not settle any claim against Orbital unless it unconditionally releases Orbital of all liability); and (z) all information and assistance reasonably requested by Customer in connection with the defense or settlement of any such claim.
7. WARRANTY DISCLAIMER
Orbital represents and warrants that for a period of sixty (60) days following download of the Software, the Software shall materially function in accordance with the applicable Documentation (“Software Warranty”), and represents and warrants that, subject to the SLA, the Subscription Service shall function materially in accordance with the applicable Documentation. Orbital further represents and warrants that the Services shall be conducted in accordance with generally accepted industry standards. Customer’s sole and exclusive remedy for breach of this Software Warranty shall be for Orbital to provide the Support in accordance with Section 2.1. above; provided however in the event of a Severity P1 or P2 error, if Orbital fails to actively provide Support to solve for the error for a consecutive thirty (30) day period (where such failure to provide active Support is not caused in whole or in part by the actions or inactions of the Customer) Customer’s sole and exclusive remedy and Orbital’s sole and exclusive liability shall be to terminate this Agreement and refund a pro-rata portion of unused and pre-paid Subscription Fees for the outstanding balance of the Term.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE ORBITAL TECHNOLOGY, DOCUMENTATION, SUPPORT AND PROFESSIONAL SERVICES ARE PROVIDED “AS-IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. ORBITAL HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM CONDUCT OR COURSE OF DEALING. ORBITAL DOES NOT WARRANT THAT THE ORBITAL TECHNOLOGY WILL BE ERROR-FREE OR WILL WORK WITHOUT INTERRUPTIONS, AND CUSTOMER RELIES ON THE ORBITAL TECHNOLOGY AT CUSTOMER’S OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, THE LIMITATIONS SET FORTH ABOVE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.3 Beta Products and Unpaid Subscriptions
Any “beta”, non-production releases, or where Customer uses the Orbital Technology without paying any fees to Orbital (“Unpaid Subscriptions”) that Orbital makes available to Customer are provided wholly “AS-IS” without any warranty (“Unpaid Versions”). Customer assumes all risks associated with any use of Unpaid Versions, and Orbital disclaims any and all warranties, and shall not be liable for any damages from Customer’s use of Unpaid Versions.
8. EXCLUSION OF CERTAIN DAMAGES; LIMITATION OF LIABILITY
8.1 No Consequential Damages
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Limitation on Direct Damages
EACH PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO ORBITAL UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. EXCEPT FOR ANY ACTION BY ORBITAL FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE DATE THE CLAIM AROSE.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO (i) ORBITAL’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.1 OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.4; (ii) DAMAGES ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (iii) CUSTOMER’S BREACH OF SECTIONS 1.2 (LICENSE GRANT) OR 1.3 (RESTRICTIONS); OR (iv) DAMAGES ARISING OUT OF A BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
9. GENERAL PROVISIONS
9.1 Compliance with Laws and Export Control
Each Party shall comply with all applicable laws and government regulations, including, if applicable, the export laws and regulations of the United States and other applicable jurisdictions, in connection with providing and using Orbital Technology. Without limiting the foregoing, (i) each Party represents that it is not named on any government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not, and shall ensure that Authorized Users do not violate any export embargo, prohibition, restrictions or other similar law in connection with this Agreement.
Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restrictions.
Neither Party may assign this Agreement (including any and all Orders and/s) nor any of its rights or obligations under this Agreement without the prior written consent of the other Party, except in the case of an assignment due to corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions by either Party, which may occur without written consent. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
9.3 Force Majeure
Except for the obligation to pay Fees, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, pandemics, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts including restrictions, epidemics, pandemics, hacker attack, or failure of the Internet (each a “Force Majeure Event”). The Party suffering a Force Majeure Event shall give the other Party written notice of such a Force Majeure Event and shall use reasonable efforts to mitigate against the effects of such Force Majeure Event. In the event a Party suffers a Force Majeure Event that lasts longer than ninety (90) continuous days, the other Party may terminate the Agreement or an Order Form immediately upon written notice.
9.4 Governing Law
This Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state courts located in San Francisco County and the federal courts located in the City and County of San Francisco, California. If either Party breaches or threatens to breach the provisions of Sections 1.2, 1.3, or 5, each Party agrees that the non-breaching Party may have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
9.5 Entire Agreement; Amendments
This Agreement (together with the Exhibits, and Orders hereto) is the sole agreement of the Parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The following order of precedence shall apply: first, this Agreement, and second, Order(s), provided that if an Order, by its explicit terms, states that it is intended to supersede an identified provision of this Agreement, it then shall so supersede. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Orbital to object to such terms. Any ambiguity in this Agreement shall be interpreted without regard to which Party drafted it. This Agreement may only be amended by a writing signed by the Parties. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement.
Any required notice shall be given in writing by customary means with receipt confirmed at the address of each Party set forth below, or to such other address as either Party may substitute by written notice to the other, or by electronic transmission to the email address below. Notices will be deemed to have been given at the time of actual delivery in person, one day after delivery to an overnight courier service, three days after deposit in the Party’s local mail, or upon acknowledgment of receipt of electronic transmission.
9.7 Relationship of the Parties
The relationship between the Parties shall be that of independent contractors. The Agreement doesn’t create a partnership, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Orbital may reference Customer’s name, branding, and logo in Orbital’s marketing materials and as part of its sales presentations to other potential customers.
9.9 Waiver; Severability
Waiver of any term of this Agreement or forbearance to enforce any term by either Party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable, or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.
This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which shall constitute together the same document. This Agreement may be executed by way of a certificate-based digital signature and the Parties hereby agree that such digital signature shall be treated as an original signature for all purposes hereof.
Effective Date: September 11, 2023
Mailing address: 5432 Geary Blvd, Unit 817, San Francisco, CA 94121
Email address: email@example.com
EXHIBIT A: SECURITY POLICY
See Security Policy, incorporated by reference.