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MyOrchard Shop Service Agreement

  • Updated

I. GENERAL TERMS AND CONDITIONS

  1. Subscription to MyOrchard SHOP Product

    During the Term and in accordance with this Agreement, Customer may access and use the products which Customer subscribed to, whether by subscription, free version or promotion (each a “Product”), as referenced in the Order Form, MYORCHARD SHOP website located at https://my.myorchard.shop, email from MYORCHARD, upgrades to various packages via self-serve confirmation either through push notifications, the MYORCHARD SHOP application or email from MYORCHARD (the “Order Form”). Each Product may include updates, cloud-based and support services, applications, or documentation. Each of these are subject to the terms of this Agreement as applicable. Customer is responsible for all actions taken under its MYORCHARD account credentials, regardless of whether such actions are taken by Customer, its employees or a third-party. Customer will safeguard all account credentials (including any passwords and payment method details) in its possession or under its control. MYORCHARD is not liable for any loss or damage arising from any unauthorized use of Customer’s account.

    By clicking on the "I AGREE" button, signing this Agreement or a similar affirmation, or by acknowledging acceptance of the Agreement by any other method allowed by MYORCHARD or by accessing MYORCHARD SHOP, Customer agrees to be bound by this Agreement (the earliest of which is the "Initial Term"). Customer should also read MYORCHARD's privacy policy located at https://support.myorchard.com  (the "Privacy Policy"), which is incorporated by reference into this Agreement. If Customer does not wish to be bound by this Agreement, please do not access, or use the Application Services

  2. Grant of License
    During the Term, MYORCHARD grants Customer a limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use, and to permit its employees and all other users who access and use the Products on Customer’s behalf (collectively, the “Users”) to access and use, the Products on the terms set forth in this Agreement. Customer agrees that all rights, title and interest in and to all the intellectual property rights in the Products, and all modifications, extensions, scripts and other derivative works of the Products provided or developed by MYORCHARD, including the Beta Technology, are owned exclusively by MYORCHARD or its licensors. All rights not granted to Customer in this Agreement are reserved by MYORCHARD.

  3. License Restrictions
    Customer and any Users shall not (and shall not allow any User or third-party to): (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Products, by any means whatsoever; (ii) distribute viruses or other harmful or malicious computer code via or into the Products; (iii) engage in any conduct that disrupts or impedes a third-party’s use and enjoyment of the Products; (iv) remove any product identification, copyright or other notices from the Products; (v) sell, lease, lend, assign, sublicense, grant access or otherwise transfer or disclose the Products in whole or in part, to any third-party; (vi) use the Products for timesharing, service bureau or hosting purposes or otherwise use, resell, sublicense, distribute or transfer or allow others to use the Products to or for the benefit of third parties; (vii) modify or incorporate into or with other software or create a derivative work of any part of the Products, unless agreed to in writing by MYORCHARD; (viii) use the output or other information generated by the Products for any purpose other than as contemplated by this Agreement; (ix) use the Products for any use other than Customer’s internal business use; (x) use unauthorized modified versions of the Products, including without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Product; (xi) use the Products in any way that is a misrepresentation of claims that are factually incorrect; or (xii) use the Products in any way that is contrary to applicable local, state/provincial, federal, regional and foreign laws, including without limitation those relating to fiscal laws and VAT regulations, as well as privacy, data protection, electronic communications and anti-spam legislation; or (xii) use the Products in any way to cause defamation, threats, harassment, discrimination, or violence. MYORCHARD retains all title to, and except as expressly licensed herein, all rights to the Products, all copies, derivatives, and improvements thereof, and all related materials.

  4. Term of Agreement
    1. Unless otherwise agreed to in writing, the “Initial Term” shall mean the duration identified in the Order Form, beginning on the date identified in the Order Form (the “Subscription Start Date”). If the Subscription Start Date is not explicitly nor implicitly identified in the Order Form, the Subscription Start Date shall be the date Customer executes, where applicable, the initial Order Form, unless otherwise agreed to in writing. Some software Products may be made available to Customer on a date prior to the Subscription Start Date identified in the Order Form. If Customer uses such software Products to process taxable business transactions before such identified Subscription Start Date, then the Subscription Start Date will thereby be amended to such earlier date.

    2. Upon expiration of the Initial Term and unless otherwise stated in the Order Form or herein, this Agreement will automatically renew for a duration equal to the Initial Term (each a “Renewal Term”, the “Current Term” being the Initial Term or the then-current Renewal Term (as the case may be); and the Initial Term and all Renewal Terms collectively, the “Term”) until terminated by Customer or MYORCHARD by delivery of written notice to the other party at least ninety (90) days prior to the end of the Current Term, or such period of notice equal to the Current Term where the Current Term is less than ninety (90) days. If no Order Form has been provided, the minimum period of notice required to be given shall be thirty (30) days. In the case of Products licensed on a trial basis, the Term of this Agreement shall be limited to the duration of the trial period identified in the Order Form. Except as otherwise specified herein, Customer may not terminate this Agreement prior to the expiration of the Term. If Customer is located in the Province of Quebec, Customer expressly waives the application of Sections 2125 and 2129 of the Civil Code of Quebec.

  5. Fees and Payment
    1. Customer shall pay MYORCHARD the annual and/or monthly fees (“Fees”) specified in the Order Form, in accordance with the timing and currency specified in the Order Form. If no Order Form has been provided, the Fees will be as set out on the website located at https://support.myorchard.com/, or the Fee Disclosure Schedule B for the relevant Products. Unless required by applicable law, all payments by Customer to MYORCHARD under this Agreement are non-refundable and made via the payment method specified by Customer in the Order Form, or as otherwise agreed in writing by the parties. Customer shall undertake any additional actions reasonably requested by MYORCHARD to implement any automated Fee payment process. Any amounts past due shall accrue interest at a rate which is the lesser of: one and a half percent (1.5%) per month or the maximum rate allowable by law. Any assessment of late fees shall be without prejudice to MYORCHARD’s right to suspend Customer’s access to the Products. Any applicable goods and services or sales taxes will be added to Fees owing pursuant to this Agreement.

    2. Customer acknowledges and agrees that by executing an Order Form, Customer is obligated to pay all of the Fees identified in (i) the Order Form or website (as applicable), and (ii) this Agreement, for the duration of the Current Term, and that any software subscription discounts, or hardware discounts offered to Customer and/or identified on the Order Form are contingent upon the foregoing. Similarly, Customer acknowledges and agrees that, by renewing their subscription, whether implicitly or explicitly, Customer is obligated to pay all of the Fees due under the renewed contract at the then-current prices for the duration of the Renewal Term. Customer further acknowledges and agrees that any discounts offered under the initial Order Form shall not carry over or pertain to the Renewal Term, unless otherwise agreed to in writing.

    3. Customer acknowledges upon using services agrees to authorized debit, credit card payments, or eft for fees and payments stated in sections 5.1 and 5.2. Customer further acknowledges bank information will be kept up to date and advise MYORCHARD of any changes to bank information.

  6. Confidential Information
    MYORCHARD and Customer (each a “Receiving Party”) shall each retain in confidence all information received from the other party (the “Disclosing Party”) pursuant to or in connection with this Agreement, the Products or the Beta Technology, that the Disclosing Party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under this Agreement. Each party shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its legal and financial consultants as required in the ordinary course of that party’s business. Notwithstanding the foregoing, the restrictions set forth above will not apply to (i) information previously known to the Receiving Party without reference to the Disclosing Party’s Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the Receiving Party, (iii) information that is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, or (iv) information required to be disclosed pursuant to applicable law by enforceable orders of the court or other governmental authority. The foregoing shall also not prevent MYORCHARD from using Customer Data on an aggregate and deidentified basis. Customer shall ensure that its Users fully comply with the terms of this Section 6 and shall be responsible for any damages suffered by MYORCHARD as a result of a User’s failure to do so.

  7. Customer's Representations
    Customer represents and warrants that currently and throughout the Term (i) Customer is fully authorized to enter into this Agreement and that Customer and any Users are fully authorized to utilize the Products, (ii) Customer and any Users are and will remain in compliance with all MYORCHARD policies, applicable laws and regulations with respect to its and their use of the Products and activities related to this Agreement, including but not limited to fiscal and privacy laws; and (iii) if Customer or any of its Users imports lists into the Products for the purpose of sending electronic communication (e.g., email, text messages), or otherwise collects electronic addresses for the purpose of sending electronic messages, then Customer warrants that each person on such list has previously opted-in to receive promotional electronic communications from Customer (where applicable) and that the content of such communications by Customer will comply with applicable laws and regulations.

  8. Customer Data, Privacy and Intellectual Property

    8.1. “Customer Data” means any data that Customer or its Users input into the Products for processing in connection with this Agreement, including any personally-identifiable information (“Personal Data”) forming part of such data.

    8.2. Customer may select the Personal Data it inputs into the Products at its sole discretion; MYORCHARD has no control over the nature, scope, origin, and/or the means by which Customer acquires Personal Data processed by the Products. MYORCHARD will comply, and will ensure that its personnel comply, with the requirements of applicable privacy laws and regulations governing Customer Personal Data in MYORCHARD’s possession or under its control. Customer is solely responsible for ensuring that it complies with any legal, regulatory or similar restrictions applicable to the types of data Customer elects to process with the Products. Customer remains responsible for properly handling and processing notices regarding Personal Data of Customer’s clients and Users. Customer must not disclose or distribute any material that contains personal, medical/health, sensitive or other confidential information without the express consent of the data subject.

    8.3. The Products grant Customer the ability to independently backup and archive Customer Data. Accordingly, Customer is responsible for performing regular backups of Customer Data. Nevertheless, MYORCHARD will regularly perform backups of Customer Data stored in the Products. MYORCHARD will assist Customer in recovering and restoring Customer Data to the Products to the extent commercially feasible. Customer understands and agrees that MYORCHARD is not responsible for any loss or corruption of Customer Data or other software.

    8.4. MYORCHARD uses and protects Customer Data, including information transmitted via the Products, in accordance with MYORCHARD’s Privacy Policy, located at Privacy Policy and MYORCHARD’S Merchant user agreement located at Merchant User Agreement. In addition to the permissions granted in the Privacy Policy, Customer allows MYORCHARD to use and share non-personal data with third parties to build anonymous data profiles, provide segmented marketing information, create aggregate statistical reports, and improve current and new products and services.

  9. Feedback
    Customer agrees that any materials that it provides to MYORCHARD, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, modifications, improvements, original or creative materials or other information regarding MYORCHARD or the Products or the Beta Technology, whether such materials are provided in email, feedback forms, or any other format (the “Feedback”), shall belong exclusively to MYORCHARD, without any requirement to acknowledge or compensate Customer. Customer agrees to assign and hereby assigns, all right, title, and interest worldwide in the Feedback and the related intellectual property rights to MYORCHARD and agrees to assist MYORCHARD, at MYORCHARD’s expense, in perfecting and enforcing such rights. MYORCHARD may disclose or use Feedback for any purposes whatsoever without any obligation to Customer.

  10. Beta Testing Project
    1. For evaluation and testing purposes only (“Beta Testing Project”), MYORCHARD may grant Customer a personal, non-exclusive, non-transferable, limited license to use certain technology, support services, accessories, and hardware (collectively, the “Beta Technology”). Customer’s participation in a Beta Testing Project is voluntary.

    2. If Customer agrees to the Beta Testing Project, Customer shall (i) test and evaluate the Beta Technology as requested by MYORCHARD, (ii) familiarize itself with the Beta Technology information provided by MYORCHARD and to only use or test the Beta Technology as directed, (iii) notify MYORCHARD of any and all functional flaws, errors, anomalies, and problems directly or indirectly associated with the Beta Technology known to, or discovered by Customer, (iv) respond to any and all reasonable inquiries, questionnaires, and other test documents submitted by MYORCHARD and (v) designate to MYORCHARD, in writing, an employee or representative who will serve as the single technical contact and who will be responsible for maintaining communication with MYORCHARD. In addition, Customer agrees to bear all incidental costs (such as, costs for Internet and phone services, accessories, etc.) associated with its testing of the Beta Technology, unless otherwise agreed to in writing by both parties. Customer has the obligation to maintain backups of its own data. Customer agrees and acknowledges that, following termination of the Beta Testing Project, MYORCHARD shall have no obligation to transfer Customer data to any other MYORCHARD product or service, including with respect to final release of the Beta Technology.

    3. MYORCHARD has no obligation to develop or provide any updates or revisions to the Beta Technology, and MYORCHARD reserves the right to alter or adjust service specifications for the Beta Technology as it deems necessary or desirable. Customer understands and acknowledges that Customer will not, unless otherwise agreed to in writing, receive any payment, compensation or discount for participating in, or for providing any Feedback, comments, evaluations, reports or any other services during a Beta Testing Project. Customer shall maintain backups of its own data. Customer agrees and acknowledges that, following termination of the Beta Testing Project, MYORCHARD shall have no obligation to transfer Customer data to any other MYORCHARD product or service, including with respect to final release of the Beta Technology.

    4. The Beta Technology provided by MYORCHARD is proprietary to MYORCHARD and/or its licensors. Customer agrees and acknowledges that nothing contained in this Agreement shall be construed as granting any ownership or intellectual property rights to any Beta Technology, Feedback or Confidential Information. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the Beta Technology are and will remain in MYORCHARD and Customer shall have no such intellectual property rights in the Beta Technology. Customer will not make, have made, use or sell for any purpose any product or item using, incorporating or derived from any Beta Technology or Confidential Information. Customer may not copy or reproduce the Beta Technology or reverse engineer, alter, modify, disassemble or decompile the Beta Technology, or any part thereof, without MYORCHARD’s prior written consent.

  11. Third-Party Services
    “Third-Party Services” are products, applications, services, software, networks, systems, directories, websites, databases and information from third parties, including from MYORCHARD subsidiaries, partners and affiliates, that one or more Products link to, or which Customer may connect to or enable in conjunction with one or more Products. Customer may decide to enable, access or use any Third-Party Services (as defined above). Customer agrees that access and use of such Third-Party Services shall be governed solely by the terms and conditions of such Third-Party Services, and that MYORCHARD is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third-Party Services, including, without limitation, their content or data practices (including with regards to Customer Data and Personal Data) or any interaction between Customer and the provider of such Third-Party Services, regardless of whether or not such Third-Party Services are provided by a third-party that is a member of a MYORCHARD partner program or otherwise designated by MYORCHARD as “certified”, or “approved” by or “integrated” with MYORCHARD. Any use by Customer of Third-Party Services shall be solely between Customer and the applicable third-party provider. Customer irrevocably waives any claim against MYORCHARD with respect to such Third-Party Services. MYORCHARD is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third-Party Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third-Party Services.

  12. Maintenance Activities and Product Changes
    1. It may be necessary for MYORCHARD to perform scheduled and/or unscheduled repairs or maintenance, or remotely patch or upgrade the Product. This may temporarily degrade the quality of the services or result in a partial or complete outage of the Product. MYORCHARD will endeavor to carry out such work during times that will cause the least disruption to Customer’s business. Customer shall cooperate, if necessary, to perform such work.

    2. MYORCHARD may add to, at any time and its full discretion, remove, change or discontinue the Products or any component or version of the Products at any time (the “Product Changes”), which may require Customer to take certain actions including, but not limited to, installing certain patches, fixes or updates, upgrading to a new version of a Product and/or migrating to an alternative Product. Such Changes may be made for reasons including, but not limited to: (i) to comply with applicable law or regulation, (ii) for security reasons, (iii) due to changes imposed by a third-party supplier, and/or (iv) due to the termination of our relationship with a third-party supplier which is material for the provision of the Products.

  13. Termination and Suspension
    1. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by giving the breaching party written notice specifying the nature of the breach in reasonable detail and the non-breaching party’s intention to terminate (a “Termination Notice”). If the breach has not been cured within the period ending thirty (30) days following delivery of the Termination Notice, then this Agreement shall automatically terminate.

    2. Notwithstanding the foregoing, MYORCHARD reserves the right, at any time and without notice, to terminate this Agreement if Customer violates the license restrictions under Section 3 of the Agreement.

    3. Notwithstanding the foregoing, MYORCHARD may suspend Customer’s access to the Products immediately without notice if MYORCHARD, in its sole discretion, believes: (i) such suspension is required by law; (ii) there is a security or privacy risk to Customer; (iii) Customer is infringing or violating the rights of third parties, or acting in a manner that is abusive, profane or offensive; (iv) Customer does not pay its Fees or any invoices in a timely manner; or (v) Customer is in breach of any material provision of this Agreement, including its license restrictions or confidentiality obligations. Any suspension of Customer’s access to the Products will not limit or waive MYORCHARD’s rights to terminate this Agreement or Customer’s access to the Products.

    4. Upon termination of this Agreement, Customer shall discontinue its use of the Product(s). Notwithstanding the foregoing, termination of this Agreement by MYORCHARD shall not limit Customer’s obligation to pay all of the applicable Fees, nor restrict MYORCHARD from pursuing any available remedies, including injunctive relief. Customer agrees that following termination of Customer’s account and/or use of the Product, MYORCHARD may immediately deactivate Customer’s account and delete Customer Data. Customer further agrees that MYORCHARD shall not be liable to Customer nor to any third-party for any termination of Customer’s access to the Product or deletion of Customer Data in accordance with this Agreement. Sections discussing license restrictions, Fees and payment, confidentiality, Customer representation, indemnification, and limitation of liability shall survive termination of this Agreement, along with any other provisions that are intended by their terms to survive.

    5. Notwithstanding anything to the contrary in the Agreement, should the Agreement be terminated (a) by Customer prior to completion of the Current Term  for any reason other than breach by MYORCHARD under Section 13.1, or (b) by MYORCHARD for material breach by Customer under Section 13.1 or 13.2, Customer will be charged an early termination fee calculated as the sum of: (i) any non-recurring Fees relating to the terminated Agreement(s) which have not been paid to MYORCHARD as of the effective date of termination; and (ii) any recurring Fees under the Agreement that would have otherwise become due during the remainder of the Current Term; and (iii) the difference between the list price (as indicated on our website), and the discounted price (if any) on either software and/or Hardware that the Customer may have received during or pertaining to the Current Term (collectively, the “Early Termination Fee”). The Customer (i) authorizes MYORCHARD to collect the Early Termination Fee, and any applicable taxes due on such fee, according to the same payment methods and/or accounts for collecting amounts under the Agreement, and (ii) acknowledges that the Early Termination Fee shall be immediately due and payable in full. The Parties acknowledge and agree that the Early Termination Fee is a genuine and reasonable pre-estimate of the loss and damage suffered by MYORCHARD in the event that the Customer terminates prior to completion of the Current Term and not a penalty.

      II. PRODUCT-SPECIFIC TERMS AND CONDITION

  14. MyOrchard Shop
    1. Customer will retain ownership of the URL and/or domain name applicable to any website utilized by Customer in connection with the MYORCHARD SHOP products (“Customer’s Site”).

    2. Customer represents and warrants that currently and throughout the Term, Customer and any Users are fully authorized to publish, and authorize MYORCHARD to publish on behalf of Customer, without the necessity of obtaining any further permissions from or payments to any third-party, all of the materials provided for publication on Customer’s Site, including without limitation, text, logos, photos and other graphics.

      By connecting Customer’s account to a Social Media Network account, Customer acknowledges and agrees that they are consenting to the continuous release of information to others, including to the Social Media Network (in accordance with their privacy settings on the Social Media Network and MYORCHARD account settings). MYORCHARD and the Social Media Networks are continually making changes and improvements to this feature, and therefore the available features, and information that is shared, may change from time to time and without notice.

    3. If you choose to upgrade or downgrade your MYORCHARD SHOP subscription from one paid plan (“Old Plan”) to another paid plan (“New Plan”), your service will be switched immediately to the New Plan. The payment for the unused portion of service from your Old Plan will be credited toward the price of the New Plan. Your future monthly billing date will always remain the same. If the Plan change is a downgrade, credit will be applied to future months and your next monthly fee will be charged when the credit from the Old Plan has been used. If the Plan change is an upgrade, you will be charged the remaining portion for the current billing period immediately, and subsequent months will be charged on your previously existing billing date. Remaining credit from the current billing period will be calculated based on the number of remaining days in the current billing month.

    4. Notwithstanding other provisions of this Agreement, MYORCHARD SHOP Customers can cancel their paid subscriptions to MYORCHARD SHOP at any time by downgrading to a free plan. There will be no additional charges to their credit card or PayPal account after cancellation for any new fees according to the Fee disclosure schedule B.
      The MYORCHARD SHOP account may be terminated by selecting the “Close my account” option in the account. Any paid subscription needs to be canceled before an account can be closed.

  15. Hardware
    1. If Customer agrees to purchase point-of-sale equipment and supplies (“Hardware”), Customer shall pay the purchase price set forth in the Order Form, including shipping/handling fees, duties, brokerage fees, and any applicable sales, use, harmonized, valued-added or similar taxes. Hardware is subject to availability and will be shipped to Customer upon due receipt of payment. MYORCHARD may fulfill a Hardware purchase order by shipping to Customer an equivalent Hardware product with same functionality. All sales of Hardware are final. Customer must verify no later than five (5) business days from receipt of Hardware that shipment was accurate and complete, failing which the Product warranty under this section will be inapplicable.

    2. In addition to any applicable manufacturer’s warranty, MYORCHARD warrants to Customer that new Hardware will be free from defects in workmanship and materials for thirty (30) days from the date that Hardware was shipped to Customer as original end-user (“Warranty Period”). This Limited Warranty is not transferable. During the Warranty Period, MYORCHARD may, at its sole option, repair or replace Hardware without charge for either labor or parts. If MYORCHARD is unable to repair or replace the Hardware, MYORCHARD agrees to refund Customer the net purchase price paid by Customer for the affected Hardware. Hardware must be returned in good condition in the original packaging and include all related components. Charges for returning Hardware shall be for Customer’s account. A restocking fee may also apply. Following expiration of the Warranty Period, Customer must contact manufacturer for any repairs or replacement and adhere to manufacturer’s merchandise return procedures. The manufacturer’s warranty and contact information are included with the Hardware. MYORCHARD’s Limited Warranty does not apply: (i) to normal wear and tear; (ii) if the Hardware is opened, tampered with or repaired by someone not authorized by MYORCHARD; (iii) to any damage attributable to misuse, moisture or liquids, accident, abuse, neglect or misapplication; (iv) to physical damage to the surface of Hardware, such as scratches, dents or other cosmetic changes; or (v) if used with products or services not provided or licensed by MYORCHARD.

    3. MYORCHARD may provide Customer with occasional help and guidance with regard to Customer’s network installation and setup, however, Customer remains at all times responsible for its own network.

    4. REPAIR OR REPLACEMENT ARE THE EXCLUSIVE REMEDY PROVIDED IN CONNECTION WITH THE PURCHASE BY CUSTOMER OF THE HARDWARE. MYORCHARD, ON BEHALF OF ITSELF, ITS RESELLERS AND DISTRIBUTORS, HEREBY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND/OR FITNESS FOR PURPOSE.

  16. MyOrchard Accept
    MYORCHARD Accept is a separate payment processing service governed by a different set of agreements. To the extent applicable, these agreements are referenced at https://support.myorchard.com/hc/en-us/articles/12209293161364-Merchant-Accept-Agreement and schedule A fee disclosure when signing up with MYORCHARD ACCEPT.

  17. Shipping Labels
    1. If Customer chooses to use MYORCHARD’s shipping labels feature, MYORCHARD and any designated third parties will serve only as an intermediary between Customer and the shipping carrier (e.g., USPS), allowing Customer to purchase postage and print shipping labels. While MYORCHARD will facilitate the purchase and production of shipping labels, Customer is responsible for shipping to its clients. MYORCHARD is not responsible for picking up, transporting, delivering or otherwise dealing with any shipments.

    2. Customer’s use of postage is subject to, and each Customer is responsible for compliance with, all applicable carrier rules and all local and international shipping and customs regulations, charges, taxes and duties. If any such charges become due and are charged to MYORCHARD by any competent authority as a result of Customer’s use of MYORCHARD shipping labels feature, Customer agrees to reimburse MYORCHARD fully in respect of the same within 7 days of demand.

    3. Customer must maintain a valid payment method on file to use the shipping labels feature, and Customer authorizes MYORCHARD to charge such payment method for any fees incurred in relation to the shipping labels feature. If payment is declined, or if MYORCHARD is otherwise not able to collect payment, Customer will not be able to purchase any subsequent postage until such fees are paid.

    4. Customer acknowledges and agrees that use of MYORCHARD’s shipping labels feature, including information transmitted to or stored by MYORCHARD, is governed by MYORCHARD’s Privacy Policy. At the same time, any chosen shipping carrier will apply their own privacy policy to the information processed by that carrier.

  18. Indemnification
    1. Customer shall indemnify, defend and hold harmless MYORCHARD and its officers, employees, agents and affiliates from and against all losses, expenses, liabilities, damages and costs including, without limitation, reasonable attorneys’ fees (collectively “Costs”), to the extent that such Costs are attributable to any breach by Customer or any User, independent contractor, or affiliate thereof, of any representations, warranties or other obligations set forth in this Agreement.

    2. MYORCHARD shall indemnify, defend and hold harmless Customer and its officers, employees, agents and affiliates from and against all Costs, to the extent such Costs are attributable to the Products infringing or misappropriating any registered third-party intellectual property right, including trademarks, patents and copyrights if MYORCHARD is notified promptly in writing and given authority, information, and assistance for the defense or settlement of any related proceeding.

  19. Limitation of Liability
    1. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, MYORCHARD’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE TO SUCH LIABILITY WAS FIRST ASSERTED. IF AND TO THE EXTENT THAT CUSTOMER PARTICIPATES IN A BETA TESTING PROJECT, IN NO EVENT WILL MYORCHARD’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THE BETA TESTING PROJECT EXCEED $100 CDN.

    2. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THAT CUSTOMER PARTICIPATES IN A BETA TESTING PROJECT, IN NO EVENT SHALL MYORCHARD BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO THE BETA TECHNOLOGY OR THE TRANSACTIONS PROCESSED THEREIN.

    3. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENTAS BETWEEN THEM. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE PRODUCTS AVAILABLE TO CUSTOMER AND THAT, WERE MYORCHARD TO ASSUME FURTHER LIABILITY OTHER THAN AS SET FOR HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SIGNIFICANTLY HIGHER.

    4. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, MYORCHARD WILL NOT BE LIABLE OR INDEMNIFY CUSTOMER IN ANY WAY FOR ANY DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM (i) CUSTOMER’S OMISSION TO INSTALL ANY PATCH, FIX, UPDATE OR UPGRADE, AND/OR (ii) ANY PRODUCT CHANGES PURSUANT TO SECTION 12.2.

  20. Disclaimer of Warranties
    CUSTOMER ACKNOWLEDGES THAT (i) MYORCHARD CANNOT GUARANTEE THE RESULTS GENERATED THROUGH THE PRODUCTS OR THE BETA TECHNOLOGY, OR THAT THE PRODUCTS OR THE BETA TECHNOLOGY WILL BE CONTINUOUSLY AVAILABLE FOR USE WITHOUT INTERRUPTION, (ii) THE PRODUCTS AND THE BETA TECHNOLOGY ARE PROVIDED “AS IS”, ON AN “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, AND MYORCHARD HEREBY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY (a) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (b) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, (c) WARRANTY OF TITLE OR NON-INFRINGEMENT; OR (d) STATUTORY REMEDY, AND (iii) MYORCHARD IS NOT RESPONSIBLE FOR ANY PRODUCT CONFIGURATION SETTINGS OR PRODUCT CHANGES OR BETA TECHNOLOGY CHANGES APPLIED BY OR ON BEHALF OF CUSTOMER. MYORCHARD EXPRESSLY DISCLAIMS ANY SPECIFIC SERVICE LEVEL WARRANTIES OR COMMITMENTS. REGARDLESS OF ANY OTHER TERM OF THIS AGREEMENT, NOTHING IN THIS AGREEMENT EXCLUDES OR PURPORTS TO EXCLUDE ANY STATUTORY RIGHT OR WARRANTY THAT MAY NOT BE EXCLUDED BY LAW.

  21. Assignment and Subcontractors
    Customer may not assign any of its rights or obligations under this Agreement without MYORCHARD’s prior written consent. MYORCHARD may, without Customer’s prior consent, assign its rights and obligations under this Agreement. Subject to the foregoing, the provisions of this Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and permitted assigns. MYORCHARD shall be free to perform all or any part of this Agreement through one or more subcontractors, partners or affiliates.

  22. Governing Law, Venue, Arbitration and Attorneys' Fees
    1. The laws and regulations of the province of Ontario and the federal laws applicable therein shall govern this Agreement in all respects, without giving effect to conflicts of laws principles, and the courts of the province of Ontario shall have jurisdiction to hear any question concerning such use.
    2. Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (i) this Agreement; (ii) the Products, services or equipment provided by MYORCHARD; (iii) oral or written statements, or advertisements or promotions relating to this Agreement or to the Products, services or equipment; or (iv) the relationships that result from this Agreement (collectively the “Claim”) will be determined by arbitration to the exclusion of the courts. Arbitration will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in the province of Ontario.
    3. Customer agrees to waive any right Customer may have to commence or participate in any class action or representative proceeding against MYORCHARD related to any Claim and, where applicable, Customer also agrees to opt out of any class or representative proceedings against MYORCHARD.
    4. Notwithstanding the foregoing provisions, (i) each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (ii) MYORCHARD reserves the right to collect any outstanding amounts that Customer owes to MYORCHARD in a court of competent jurisdiction.

  23. Export Compliance and Other Restrictions
    Products which MYORCHARD may provide or make available to Customer may be subject to U.S. export control and economic sanctions laws. Customer agrees to comply with all such laws and regulations as well as all laws and regulations applicable to the Customer’s jurisdiction of origin, as they relate to the access and use of Products. Customer agrees not to access the Product from any jurisdiction in which the provision of the Product is prohibited under Canadian, U.S. or other applicable laws or regulations (a “Proscribed Country”) or provide access to the Product to any government, entity or individual located in any Proscribed Country. Customer represents, warrants, and covenants that (i) it is not a national of, or company registered in, any Proscribed Country; and (ii) it shall not permit third parties to access or use the Product in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions.

  24.  General
    1. If one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of this Agreement shall be unaffected.

    2. Customer may address all notices, statements and other communications to MYORCHARD to the following address:

      Email: support@myorchard.com

      Mail: MyOrchard Customer Service

      Attention: Privacy Protection Officer

      Address: 1055 West Hastings Street, Suite 2130

      Vancouver BC, V6E2E9

      This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

    3. MYORCHARD may provide any and all notices, statements and other communications to Customer through either email, posting on its website, an in-product message, or by mail or express delivery service.

    4. During the term of this Agreement, Customer grants MYORCHARD a free license to use, reference and display the Customer’s name and trademarks in any communications, including publications, press releases, stories, websites, social media posts, and public filings in connection with the promotion, marketing, distribution, and public disclosure of the MYORCHARD brand, activity and Products (collectively, the “Materials”). Following the termination of this Agreement, MYORCHARD shall have sixty (60) days to remove all Customer’s name and trademarks from the Materials.

    5. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than Customer’s payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party.

    6. This Agreement, along with the applicable Order Form, the, the Privacy Policy, and MyOrchard User Agreement, constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto.

    7. In the event of any inconsistency or conflict between the terms of the Agreement and the terms of the Order Form, the terms of the Order Form shall govern.

    8. MyOrchard may update or revise this Agreement from time to time by publishing a notice of such updates on MyOrchard's website or push notifications. Customer agrees that it will review this Agreement periodically. If Customer or User does not agree to the terms of this Agreement or any modified version of this Agreement, Customers or User's sole recourse is to terminate its use in accordance with this Agreement. If Customer or User breaches this Agreement, Customer or User's authorization to use MYORCHARD SHOP automatically terminates, and Customer and User must discontinue all use.

    9. Customer has reviewed, understood, and accepted the terms and conditions set forth in this Agreement and has either consulted with legal counsel prior to executing this Agreement or has knowingly forgone its right to consult with legal counsel prior to such execution.

    10. The parties acknowledge that they require that this Agreement be drawn up in the English language, that the English language version prevails, and that any translation is for information purposes only.
  1.  

IV. Definitions

For the purposes of this Agreement, unless the context clearly indicates otherwise, (i) all the capitalized words in this Agreement shall have the meanings set forth as follows, and (ii) all non-capitalized words defined in the Agreement shall have the meanings set forth therein. Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such meaning throughout this Agreement.

  1. “Agreement” means this MYORCHARD SHOP Service Agreement (the “Agreement”) which covers the services MYORCHARD SHOP, and its affiliates (collectively, “MYORCHARD”) provide to you (the “Customer”).
  2. “Beta Technology” has the meaning ascribed to it in Section 10.
  3. “Confidential Information” has the meaning ascribed to it in Section 6.
  4. “Costs” has the meaning ascribed to it in Section 14.1
  5. “Current Term” has the meaning ascribed to it in Section 4.2.
  6. “Customer” means you, the entity or person that registers for a MYORCHARD SHOP account.
  7. “Customer Data” has the meaning ascribed to it in Section 8.1
  8. “Customer’s Site” has the meaning ascribed to it in Section 1.1
  9. “Current Term” has the meaning ascribed to it in Section 4.2
  10. “Disclosing Party” has the meaning ascribed to it in Section 6.
  11. “Early Termination Fee” has the meaning ascribed to it in Section 13.5
  12. “Fees” has the meaning ascribed to it in Section 5.
  13. “Hardware” has the meaning ascribed to it in Section 2.1
  14. “Initial Term” has the meaning ascribed to it in Section 4.1.
  15. “Materials” has the meaning ascribed to it in Section 20.4
  16. “MYORCHARD Accept” has the meaning ascribed to it in Section 3.
  17. “New Plan” has the meaning ascribed to it in Section 1.3
  18. “Old Plan” has the meaning ascribed to it in Section 1.3
  19. “Order Form” has the meaning ascribed to it in Section 1
  20. “Personal Data” has the meaning ascribed to it in Section 8.1
  21. “Privacy Policy” means MYORCHARD Privacy Policy ascribed to it in Section 1.
  22. “Product” has the meaning ascribed to it in Section 1
  23. “Product Changes” has the meaning ascribed to it in Section 12.2
  24. “Proscribed Country” has the meaning ascribed to it in Section 19
  25. “Receiving Party” has the meaning ascribed to it in Section 6.
  26. “Renewal Term” has the meaning ascribed to it in Section 4.2.
  27. “Social Media Network” is a third-party website or other application which enables users to communicate with each other by posting information, comments, messages, images, etc.
  28. “Subscription Start Date” has the meaning ascribed to it in Section 4.1.
  29. “Term” has the meaning ascribed to it in Section 4.1 & 4.2
  30. “Termination Notice” has the meaning ascribed to it in Section 13.
  31. “The Feedback” has the meaning ascribed to it in section 9.
  32. “Third-Party Services” has the meaning ascribed to it in Section 11.
  33. “Users” has the meaning ascribed to it in Section 2
  34. “Warranty Period”. has the meaning ascribed to it in Section 2.2

Orchard Technology, Inc.
Email: support@myorchard.com
Mail: MyOrchard Customer Service
Attention: Privacy Protection Officer
Address: 1055 West Hastings Street, Suite 2130
Vancouver BC, V6E2E9

 

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