Master Services Agreement
This Master Services Agreement was last updated on March 30, 2021.
Welcome to Orca Iot!
Orca IoT, Inc. (“Orca,” “we,” “us,” “our”) provides its services (described below) to you through its website located at https://www.orcaiot.com and https://platform.orcaiot.com (the “Site”), its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), which such Services are primarily designed to permit subscribers to reserve, use, and access certain of our cameras, track and trace devices, and such other equipment offered on the Site from to time (collectively, the “Equipment”), for your periodic, short-term use, subject to the terms and conditions provided in this Master Services Agreement (as amended from time to time, the “Agreement”).
We reserve the right, at our sole discretion, to change or modify all or any portion of this Agreement at any time. If we do, we will post a notification of the changes on the Site and will indicate the date that this Agreement was last revised. We will also notify you, either through the Services’ user interface, in an email notification, or through any other reasonable means. Any such changes will become effective no earlier than seven (7) days after they are posted, except that changes addressing new functions of the Services and/or Equipment, or changes made for legal reasons, will be effective immediately. Your continued use of the Service(s) and Equipment after the date any such change becomes effective constitutes your acceptance of all such changes or modifications to this Agreement. In the event we make changes to this Agreement and you elect not to accept them as a condition to your continued use of the Service(s) and Equipment after the date any such change becomes effective, you agree you will immediately cease all use of the Service(s) and Equipment, and promptly return all Equipment to us. This Agreement will remain binding until such Equipment is returned back to us in accordance with the terms and conditions set forth herein.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE SERVICE(S) AND/OR EQUIPMENT, YOU ARE ACCEPTING AND AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH SUCH ACCESS. YOU REPRESENT AND WARRANT THAT (A) YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT, AND (B) YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICE(S) AND/OR EQUIPMENT AND TO ENTER INTO THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS PROVIDED IN THIS AGREEMENT, YOU SHOULD CEASE ACCESSING AND/OR USING THE SERVICE(S) AND EQUIPMENT.
Use of Equipment
Use of Equipment; Term
The term (the “Term”) of your Equipment service will begin upon the arrival of the Equipment at your designated shipping location (your “Acceptance”) and will end upon the earlier of (i) our receipt of the Equipment at our designated shipping location (your “Return”), (ii) your written notification to us of any Loss (as defined below), or (iii) an Event of Default (as defined below); provided, that in no event shall the Term be less than thirty (30) days. During the Term, you hereby agree to use the Equipment from us in exchange for the Service Fee (as defined below), subject to and in accordance with the terms and conditions set forth in this Agreement. For clarity, you hereby acknowledge and agree that you may continue accessing the Site and certain other Services beyond the expiration or termination of this Agreement, subject to and in accordance with the terms and conditions set forth in the Use Documents, as applicable.
Delivery of Equipment; Loss; Notification
We will be responsible for all expense and risk of loss associated with the initial delivery of the Equipment to your designated shipping location in the United States; provided, that you shall be solely responsible for any and all fees, taxes, duties, costs and expenses associated with the initial delivery of Equipment to any designated shipping location outside of the United States. However, after such initial delivery, you will bear all risk of loss, damage, destruction, theft and condemnation to or of such Equipment, from any cause whatsoever (collectively, “Loss”).
You must notify us in writing within two (2) business days following the occurrence of any such Loss and, upon our receipt of such notification, we will have the right to recover the full replacement value of such Equipment (reasonable wear, tear and depreciation resulting from normal and proper use excepted, the “Replacement Value”) from you, as reasonably determined in our sole and absolute discretion, in addition to any other rights or remedies afforded to us hereunder. For clarity, in the event that more than one (1) piece of Equipment is used by you hereunder, this Agreement shall terminate only with respect to that certain piece of Equipment which such Loss has been attributed, and this Agreement shall continue and remain in full force and effect for all other pieces of Equipment used by you hereunder.
Title to Equipment; No Subleasing
Except as otherwise expressly set forth herein, you acknowledge and agree that we shall retain title to the Equipment at all times and that you will not acquire any ownership, title, property, right, equity or interest in, to or under the Equipment, other than the terms and conditions as set forth herein.
Furthermore, you acknowledge and agree that you will not sublease the Equipment, in whole or in part, without our prior written consent, which we may withhold in our sole and absolute discretion, and any such purported subletting by you shall be automatically deemed void.
Terms of Service
Your Registration Obligations
You may be required to register with us in order to access and use certain features of our Services and Equipment. If you choose to register for the Services, you agree to, at all times, provide and maintain true, accurate, current and complete information about yourself or your entity, as applicable, as prompted by our registration form(s). Registration data and certain other information about you or your entity are governed by our Use Documents, as applicable.
Member Account, Password and Security
You are solely responsible for maintaining the confidentiality of your password and account, if any, and you are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify us of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Services. We will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service
We reserve the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that we will not be liable to either you or to any third-party for any modification, suspension or discontinuance of the Services to the fullest extent permitted by applicable law.
General Practices Regarding Use and Storage
You acknowledge that we may establish general practices and limits concerning use of the Services and Equipment, including without limitation the maximum period of time that data or other content or information will be retained by the Services and the maximum storage space that will be allotted on our servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services and Equipment. You acknowledge that we reserve the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
The Services may include certain services that are available via a mobile device, including (i) the ability to upload data, content and information to the Service(s) via a mobile device, (ii) the ability to browse the Service(s) from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent that you access any of the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding our Services and Equipment by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Orca account information to ensure that your messages are not sent to the person that acquires your old number.
Conditions of Use
Usage and Care of Equipment
You agree that during the Term, you (and not Orca) will be solely responsible for any and all Loss, including without limitation any and all damage that is caused by an unforeseen and uncontrollable event, and you agree to return the Equipment back to us (i) in the same condition as you received the Equipment (reasonable wear, tear and depreciation resulting from normal and proper use excepted, the “Serviceable Condition”) and (ii) in compliance with our maintenance requirements, if any. You agree that you will use the Services and Equipment solely for its intended and reasonably foreseeable use, and that you will:
- comply with all applicable laws in the use of the Services and Equipment, and will not use the Services and/or Equipment by or for any illegal means or purposes;
- at all times use reasonable care in the operation or use of the Equipment, and in accordance with any notices or restrictions made available to you;
- use the Equipment solely in an environment and under circumstances which are reasonably safe for its intended use; and
- take all reasonable action to keep the equipment in Serviceable Condition
Notwithstanding anything to the contrary provided herein, if the Equipment becomes damaged, lost, stolen, destroyed or otherwise rendered unfit or unavailable for use after your Acceptance, and in addition to any other rights or remedies afforded to us hereunder, we may, in our sole and absolute discretion, either (1) repair the same or (2) supply alternative Equipment (including without limitation any required parts or pieces of the Equipment) in substitution thereof, in each case at your sole cost and expense.
Return of Equipment; Late Fees
At your sole risk, cost and expense, you must return the Equipment to us at our designated shipping location within three (3) days following the conclusion of your use of such Equipment (the “Return Period”); provided, that for purposes of satisfying the foregoing, in the event that the Equipment is not (or will not be) received by us within the Return Period, we may receive documentation from you (or the shipping carrier, as applicable), in form and substance reasonably acceptable to us, evidencing your Return of the Equipment to us, including without limitation confirmation of shipping (i.e., tracking number, etc.) and payment of any costs and fees associated therewith, within such Return Period.
If you fail to return the Equipment to us during the Return Period, you will pay us the entire Service Fee for that applicable month, as well as all such other costs and fees that may apply, as reasonably determined in our sole and absolute discretion.
Notwithstanding anything to the contrary provided herein, and in addition to any other rights or remedies afforded to us hereunder, if the Equipment is not in Serviceable Condition upon Return, we may make (or cause such to be made) all necessary repairs or restorations to bring the Equipment back to its Serviceable Condition. We will make all such repairs within a reasonable time following your Return of the Equipment and will issue notice to you, along with all accompanying invoices (each, a “Repair Notice”). Within five (5) days following your receipt of such Repair Notice, you shall reimburse us for all costs and expenses set forth in such Repair Notice.
While the Equipment is in your possession, you must keep the Equipment properly mounted and in such a place that is not easily accessible to or by any unauthorized third parties. You (and not Orca) will be solely responsible for any Loss associated with the placement and/or location of the Equipment
You are fully responsible for performing all tasks necessary to properly install the Equipment, including without limitation, uncrating, unpacking, removing packaging materials, field assembly, interconnection, calibration (if any) and mounting. You must also ensure that the installation of the Equipment conforms to the instructions (if any) provided by us and/or the manufacturer, as applicable. You (and not Orca) will be solely responsible for any Loss associated with the installation of the Equipment.
To the extent that the Services, Equipment, or any portion thereof is made available for any fee (the “Service Fee”), you will be required to select a subscription payment plan and provide us with information regarding your credit card or other payment instrument. You represent and warrant to us that such information is, and will continue to be throughout the duration of the Term, true, accurate, current and complete in all respects, and that you are authorized to use the payment instrument, as applicable. You hereby agree to promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. Please note that our accepted payment methods are currently limited to the following credits cards: Visa, Mastercard, or American Express, and that we may accept certain ACH payments, in each case as prompted by your registration process.
In any event, you shall pay us the applicable Service Fee, as well as any other charges or fees that you may incur in connection with your use of the Services or Equipment (as applicable), on the specific billing date indicated on your billing page on the Site. The length of your billing cycle will depend on the type of subscription that you choose. Service Fees are fully earned upon payment. In some cases, your payment date and/or billing cycle may change (i.e. in the event of a problem with your payment method, such as an expired credit card). Additionally, we may authorize (or otherwise charge) your payment method in anticipation of Equipment or Service-related charges through various methods, including without limitation authorizing an amount equal to approximately three (3) months of Service Fees as soon as you register. We may also charge you a one-time, non-refundable set-up fee in an amount up to $39 per each piece of Equipment used by you hereunder, in our sole and absolute discretion.
Notwithstanding anything to the contrary provided herein, you can cancel your subscription with us at any time, subject to the terms and conditions governing your Return of the Equipment set forth herein. Please note, however, that you must cancel your subscription before it renews for a subsequent month in order to avoid being charged for the next month's Service Fee. If you cancel your subscription, the cancellation will become effective at the end of the then-current monthly subscription period.
REFUNDS WILL NOT BE PROVIDED FOR ANY SUBSCRIPTION. WE DO NOT PROVIDE CREDIT, REFUNDS, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELLED MID-MONTH; PROVIDED, HOWEVER, THAT ONLY TO THE EXTENT THAT YOU CANCEL YOUR SUBSCRIPTION AT ANY TIME DURING THE FIRST THREE (3) MONTHS OF THE APPLICABLE TERM, WE MAY PROVIDE YOU WITH A PRORATED REFUND FOR ANY FULL CALENDAR MONTH(S) PAID BUT NOT YET EARNED, AS APPLICABLE. In such a circumstance, you will continue to have access to your subscription until the end of that specific monthly billing cycle. Please note that each circumstance is unique and election to make such an offer in one instance does not create the obligation to do so in another.
In the event that you fail to pay us the Service Fee within five (5) days after such Service Fee becomes due, interest shall accrue on the overdue amount, from the date overdue until the date paid, at the rate of either 1.5% per month (up to 18% per annum), or the maximum allowable rate pursuant to applicable law, whichever is lower. Additionally, you hereby agree to pay us any and all additional fees that may be incurred under this Agreement, including without limitation payment for the Service Fee of additional Equipment not included in your initial Service Fee, late Returns, Loss of any Equipment, all costs and expenses set forth in any Repair Notice, as well as any and all other amounts, fees, and costs that we may charge you in accordance with the terms and subject to the conditions set forth this Agreement (together, “Additional Fees”). You further authorize us to bill your payment method from time to time for any and all such Additional Fees.
Other Payment Provisions
If you dispute any charges, you must let us know within five (5) days after the date that we charge you. We reserve the right to change our prices at any time. If we do change our prices, we will provide notice of such change on the Site or by way of email to you, at our option, at least thirty (30) days before the change is to take effect. Your continued use of the Equipment or Services after such price change becomes effective constitutes your agreement to pay the changed amount.
Furthermore, you hereby acknowledge and agree that you shall be solely responsible and liable for, and shall indemnify and hold us and each of our directors, employees, consultants, agents and representative harmless from all applicable taxes, deductions and remissions of, as the case may be, including without limitation, any state and federal income or payroll taxes, workers' compensation, and any other amounts that may be owing to any taxing authority or associated with your access to or use of the Service(s) and Equipment, other than U.S. taxes based on our net income.
Limited Commercial Use
Unless otherwise expressly authorized herein, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service or Equipment, use of the Service or Equipment, or access to the Service or Equipment.
The occurrence of any one or more of the following events shall constitute an event of default (each, an "Event of Default") under this Agreement:
- Your failure to make any payment of Service Fee or any other sums payable by you hereunder, as and when due and/or payable;
- Your failure to observe or perform any of the other covenants, conditions, or provisions of this Agreement to be observed or performed by you;
- You become insolvent or makes an assignment of rights or property for the benefit of creditors or files for or has bankruptcy proceedings instituted against it under the federal bankruptcy law of the United States or another competent jurisdiction; or
- A writ of attachment or execution is levied on the Equipment and is not released or satisfied within ten (10) days.
Upon the occurrence of an Event of Default, we may, in our sole discretion, exercise one or more of the following remedies: (a) terminate this Agreement, in whole or in part; (b) take possession of, or render unusable, all or any portion of the Equipment, without demand or notice; (c) require you to deliver the Equipment at a location designated by us; (d) declare all unpaid amount(s) of the Service Fee and Additional Fees immediately due and payable without notice or demand to you; or (e) exercise any other right or remedy available to us at law or in equity.
Indemnity and Release
You shall defend, indemnify and forever hold us and each of our respective officers, directors, shareholders, employees, agents, representatives, assigns and successors-in-interest (collectively, “Related Parties”) harmless from and against any and all claims, liabilities, penalties, losses, costs, damages, demands, actions, causes of action, suits, proceedings, judgments and expenses including, without limitation, amounts paid in settlement, attorneys’ fees, court costs and other legal expenses arising out of, connected with, and/or relating to the Services and the Equipment, including without limitation the installation and use thereof by you (or your permitted users), and/or your (or your permitted users) access or use of the Equipment or Services.
If you are a California resident, you waive California Civil Code Section 1542, which says:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, (i) NEITHER US NOR ANY PERSON ON OUR BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES AND/OR EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (ii) YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY US, OR ANY OTHER PERSON ON OUR BEHALF, EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS AGREEMENT.
WE MAKE NO REPRESENTATION OR WARRANTIES THAT (I) THE SERVICE OR EQUIPMENT WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE OR EQUIPMENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR EQUIPMENT WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY EQUIPMENT, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE OR EQUIPMENT WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES OR EQUIPMENT; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES OR EQUIPMENT; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES OR EQUIPMENT; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES OR EQUIPMENT. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID COMPANY IN THE LAST THREE (3) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR EQUIPMENT OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE AND/OR EQUIPMENT.
Personal Injury and Property Damage Limitation
WE ARE NOT RESPONSIBLE FOR ANY PERSONAL INJURY INCURRED WHILE USING OUR EQUIPMENT. IT IS UNDERSTOOD THAT YOU ARE VOLUNTARILY USING THE EQUIPMENT PROVIDED BY US WITH FULL KNOWLEDGE THAT THERE ARE INHERENT RISKS, HAZARDS, AND DANGERS, BOTH KNOWN AND UNKNOWN ASSOCIATED WITH ACCESSING OR USING THE EQUIPMENT. YOU ASSUME AND ACCEPT ANY AND ALL RISKS THAT MAY BE ASSOCIATED WITH USE OF THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO THE RISK OF PROPERTY DAMAGE OR LOSS, SERIOUS INJURY, PARALYSIS OR DEATH.
THE EQUIPMENT MAY CONTAIN SMALL PARTS OR MAY OTHERWISE BE HAZARDOUS TO CHILDREN. KEEP DANGEROUS EQUIPMENT OUT OF REACH OF CHILDREN.
WE DO NOT EXPRESSLY OR OTHERWISE GUARANTEE OR WARRANT THE EQUIPMENT FOR ANY SPECIFIC PERFORMANCE OR PURPOSE. IF ANY ITEM MALFUNCTIONS OR FAILS TO PERFORM AS IT IS DESCRIBED, YOU AGREE TO STOP USING IT IMMEDIATELY AND YOU AGREE OUR MAXIMUM LIABILITY TO YOU IS REFUND OF THE SERVICE FEE ASSOCIATED WITH THAT ITEM.
IT IS UNDERSTOOD THAT FORCES OF NATURE, AND OTHER OCCURRENCES WHILE OUTDOORS MIGHT CREATE LESS THAN IDEAL CONDITIONS FOR YOUR PLANNED USE OF THE EQUIPMENT. DO NOT USE OUR EQUIPMENT IF CONDITIONS ARE NOT APPROPRIATE OR IF YOU ARE NOT FAMILIAR WITH THE REQUIREMENTS FOR SAFE AND APPROPRIATE USAGE OR IF THE EQUIPMENT APPEARS DAMAGED. WE CANNOT AND WILL NOT ASSUME ANY FINANCIAL RESPONSIBILITY RELATED TO THE QUALITY OF YOUR EXPERIENCE WHILE USING OUR EQUIPMENT.
THE EQUIPMENT HAS SPECIFIC CONSIDERATIONS AND CAUTIONS ASSOCIATED WITH ITS USE. IT IS YOUR RESPONSIBILITY TO FAMILIARIZE YOURSELF WITH THE USER MANUALS AND WARNINGS FOR EACH ITEM YOU USE FROM US, TO CHECK ALL ITEMS PRIOR TO EACH USE, AND TO USE THE EQUIPMENT PROPERLY.
We shall not have any liability to you by reason of any delay or failure to perform any obligation hereunder if the delay or failure to perform is occasioned by force majeure, which shall refer to any act of God, storm, fire, casualty, unanticipated work stoppage, power outage, satellite failure, strike, lockout, labor dispute, civil disturbance, riot, war, national emergency, governmental action, or other cause beyond its control including without limitation any epidemic, pandemic, or the like.
During the Term, and for as long as you maintain possession of the Equipment, you shall obtain and maintain a comprehensive general liability insurance policy with coverage limits of not less than Three Million Dollars per occurrence/Three Million Dollars aggregate ($3,000,000/$3,000,000), with coverages for bodily injury, including death, and property damage or loss arising out of or related to the use of the Equipment. Such insurance policy shall include us as an “Additional Insured” and “Loss Payee” as our interests may appear and shall be primary and not in excess of or contributory to any other insurance policies provided by or for the benefit of us. Such insurance policy shall contain an express waiver of any and all rights of subrogation that the insurers may have against us, shall provide for at least thirty (30) days advance written notice to us of any cancellation, non-renewal or other material change (i.e. any change to the amount, degree, nature, or extent of insurance protection) in any such policy and shall be issued by a reputable insurance carrier approved by us and rated A-IX or better in Best's Insurance Guides. You shall have an original policy or certificate evidencing of such insurance policy on or prior to your Acceptance and make it available upon request. If you fail to maintain and pay for such insurance,we may, but are not obligated to, obtain such insurance, upon which you will pay us the cost of such insurance upon notification from us.
At either our or your election, all disputes, claims, or controversies arising out of or relating to the Agreement, the Services and/or the Equipment that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Dekalb County, Georgia before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in this Agreement. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in this Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
Notwithstanding the provisions of the introductory section above, if we change this ‘Arbitration’ section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us written notice within thirty (30) days of the date such change became effective, as indicated in the “Date of Last Revision” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and us in accordance with the provisions of this section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
You agree that we, in our sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services or Equipment, and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Services or Equipment, may be referred to appropriate law enforcement authorities. We may also in our sole discretion and at any time discontinue providing the Services or Equipment, or any part thereof, with or without notice. You agree that any termination of your access to the Services or Equipment under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services or Equipment. Further, you agree that we will not be liable to you or any third party for any termination of your access to the Services or Equipment.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and we will have no liability or responsibility with respect thereto. We reserve the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Services or Equipment.
This Agreement constitutes the entire agreement between you and Orca and governs your use of the Services and Equipment, superseding any prior agreements between you and Orca with respect to the Services and Equipment. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content or third-party software. This Agreement will be governed by the laws of the State of Delaware without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Orca agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Dekalb County, Georgia. The failure of Orca to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or Equipment or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Agreement without the prior written consent of Orca, but Orca may assign or transfer this Agreement, in whole or in part, without restriction. You agree and acknowledge that your use of the Service(s) and/or Equipment is non-transferrable. The section titles in this Agreement e are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to this Agreement or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
You may contact us at Orca IoT, Inc., 561 Thornton Rd, Suite E, Lithia Springs, GA 30122.
Questions? Concerns? Suggestions?
Please contact us to report any violations of this Agreement or to pose any questions regarding this this Agreement or the Equipment. Our current contact information can be found online at our website https://orcaiot.com/contact.html