These General Terms apply to the purchase by Customer and provision by Orange of any of Orange Devices or Ancillary Products (“Products”) or Orange OS Services or Project Management Services (“Services”).
1. Fees and Payment.
1.1 Fees and Expenses.
Fees and expenses payable by Customer to Orange for Products and Services and invoicing terms are as provided in the Order and Additional Terms. Unless otherwise agreed in writing, all amounts will be invoiced and paid in U.S. dollars.
1.2 Payment Terms.
Except as otherwise provided in the Additional Terms or agreed in an Order, Orange will invoice for all fees and expenses payable for Products or Services in advance and all invoiced amounts are due and payable upon invoice (and prior to shipment in the case of Products or commencement of Services in the case of Services). If Customer disputes any amount or item in an invoice in good faith, Customer will pay the undisputed portion of the invoice when due and may, at its option, withhold the disputed portion pending the resolution of the dispute provided that Customer works with Orange to resolve the dispute as promptly as possible. Any invoiced amounts not subject to a good faith dispute that are not paid when due are subject to a late penalty of 1.5% monthly after a 30-day grace period.
1.3 Payment Methods.
Unless otherwise approved by Orange, Customer will make all payments by wire transfer or ACH to the account designated by Orange to Customer. If Orange approves payment by credit card, Customer agrees to pay an additional 3.5% processing fee for any payments by credit card.
1.4 Taxes.
Orange’s prices exclude all sales, use and excise taxes, and similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer, excluding taxes imposed on Orange’s net income (collectively “Taxes”). Customer is responsible for all Taxes and will reimburse Orange for any Taxes paid by Orange. Orange will include on its invoices any Taxes that are paid by Orange. If Customer asserts that any transaction under this Agreement is tax exempt, Customer will provide an exemption certificate to Orange for prior approval.
2. Confidential Information.
2.1 General.
Each party understands that the other party has disclosed or may disclose information that is designated by the disclosing party as "confidential" or "proprietary" or with a like designation or that a reasonable person would understand to be confidential or proprietary to the disclosing party (“Confidential Information”) Confidential Information (other than personally identifiable information) excludes any information that (a) is or becomes generally available to the public without any action by, or involvement of, the receiving party, or (b) was in the possession of or known by the receiving prior to receipt from the disclosing party and without an accompanying confidentiality obligation, or (c) was rightfully disclosed to the receiving party by a third party without an accompanying confidentiality obligation, or (d) was independently developed by the receiving party without use of any Confidential Information of the disclosing party. All Driver Data and Usage Data is the Confidential Information of Orange, and all Customer Data is the Confidential Information of Customer.
2.2 Restrictions on Use and Disclosure.
The receiving party will: (a) take the same security precautions to protect against disclosure or unauthorized use of the disclosing party’s Confidential Information that it takes with its own proprietary information, but no less than commercially reasonable precautions,(b) use the disclosing party’s Confidential Information only to perform obligations or exercise rights under this Agreement, to enforce this Agreement or as otherwise contemplated by this Agreement or authorized by the disclosing party and (c) disclose the disclosing party’s Confidential Information only to its employees, directors, officers, agents, contractors and advisors (“Representatives”)and its Affiliates and their Representatives on a need to know basis for a purpose permitted under this Agreement and who are bound by confidentiality obligations substantially the same as this Section. The receiving party will be responsible for any breach of this Section by any Affiliate or its or their Representative to whom it discloses the Confidential Information.
2.3 Exceptions.
The receiving party may disclose the disclosing party’s Confidential Information (a) that is required to be disclosed to comply with applicable laws or a judicial or governmental order, provided that the receiving party gives the disclosing party reasonable prior notice so that it may seek reasonable legal remedies to prevent or minimize the disclosure, and (b) on a confidential basis for due diligence purposes in connection with a merger, acquisition, financing or similar transaction.
3. Ownership; Restrictions on Use.
3.1 Products and Services.
Orange owns all right, title and interest in and to (i) any and all intellectual property rights embodied in or associated with the Orange Devices and the other Products sold under this Agreement, and (ii) (A) the Product System Software, (B) the Orange OS, (C) Services and the technology and materials used by Orange to provide the Services, and (D) the documentation for the Products and Services, and any and all intellectual property rights embodied in or associated with the items described in sub-clauses (A)- (D) of this clause (ii).
3.2 Product System Software.
Firmware, system software or other software or code that is incorporated in a Product (“Firmware, system software or other software or code that is incorporated in a Product (“Product System Software”) is licensed and not sold. For any Product with Product System Software purchased under this Agreement, Orange hereby grants to the owner/operator of the Authorized Location identified on the Order a limited, non-exclusive, non-transferable, non-sublicensable, license to use the applicable Product System Software as incorporated in the Product, in unmodified executable code format only, solely as required for the normal operation and maintenance of the Product in accordance with its documentation and the terms of this Agreement.
3.3 Use Restrictions.
Customer will not (and will not permit any third party to):
• analyze, reverse engineer, decompile, disassemble, translate or convert any Product or apply any procedure or process to any Product in order to ascertain, derive, or appropriate for any reason or purpose, the source code or source listings for software or any trade secret or other proprietary information or processes embodied by or otherwise contained in the Product except to the extent this prohibition is void under applicable law;
• modify, translate, or create derivative works based on any Product or any Product documentation; or
• remove or otherwise alter any copyright, trademark, trade secret,government restricted rights, or other proprietary or confidentiality notices or legends that are applied to the Products or their packaging, labels, or any associated documentation.
Customer will comply with the use restrictions set forth in the Orange OS Terms for the Orange OS Services.
3.4 Usage Data.
Orange owns all right, title and interest in the Usage Data and all associated intellectual property rights. “Usage Data” means any transactional and performance information related to use of the Products and Services collected by or on behalf of Orange, which may include aggregated and anonymized data based upon Customer Data. Orange agrees that it will not disclose Usage Data that contains information traceable to Customer or any Customer Representative to any third party who is not subject to a binding confidentiality obligation with respect to the Usage Data, unless the Usage Data has been aggregated or otherwise anonymized so it cannot be traced to Customer or any Customer Representative.
3.5 Customer Data.
Customer owns all right, title and interest in the Customer Data and all associated intellectual property rights. “Customer Data” means all information provided by Customer or on its behalf to Orange in connection with Customer’s use of the Products and Services (but excluding Driver Data and Usage Data). Customer hereby grants Orange a nonexclusive,royalty-free, transferrable and sub-licensable license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Data as reasonably necessary to provide the Products and the Services and as otherwise permitted under this Agreement. Orange will take commercially reasonable administrative, technical and physical measures designed to protect Customer Data from unauthorized use, access, disclosure, alteration, or destruction.
3.6 Driver Data.
Orange owns all right, title and interest in the information collected by or on behalf of Orange from Drivers or their use of the Authorized Locations (“Driver Data”),and all associated intellectual property rights. Orange will be responsible for compliance with applicable privacy and data security laws, including provision of required disclosures and obtaining required consent, with respect to the collection and use of Driver Data. Orange will take commercially reasonable administrative, technical and physical measures designed to protect Driver Data from unauthorized use, access, disclosure, alteration, or destruction. To the extent Orange provides any Driver Data to Customer, Orange hereby grants Customer a nonexclusive, royalty-free, non-transferrable and non-sublicensable license to use that Driver Data solely as reasonably necessary for its use of the Products and the Services as permitted under this Agreement.
3.7 Feedback.
Customer or its Representatives may provide suggestions,comments or other feedback (“Feedback”) to Orange with respect to the Products or the Services. Orange is not required to hold Feedback in confidence and may use and exploit Feedback for any purpose without any compensation or other obligation to Customer or its Representatives.
3.8 Reservation of Rights.
Each party reserves to itself all rights not expressly granted pursuant to this Agreement.
3.9 Further Assurances.
Upon a party's reasonable request and at its expense, the other party will execute and deliver any documents and instruments and take any further actions necessary to give full effect to this Section 3.
4. Representations and Warranties.
4.1 General.
Each party represents and warrants that (a) it has full corporate power and authority to execute,deliver, and perform its obligations under this Agreement; (b) this Agreement is valid, binding, and enforceable against it in accordance with its terms and(c) there is no provision in its governing documents, or in any agreement binding on it,that would be contravened by the execution, delivery or performance of this Agreement. Each party further covenants that it will comply with all applicable laws when fulfilling its obligations and exercising its rights under this Agreement.
4.2 Products and Services.
For a Product or Project Management Service, Orange will provide the warranty for the Product or Project Management Service, if any, described in the Additional Terms or the Order. THE ORANGE OS SERVICES ARE PROVIDED AS IS AND WITHOUT WARRANTY OF ANY KIND.
4.3 DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ORANGE DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE,NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING.
5. Indemnification.
5.1 General.
Each party, at its expense, will defend,indemnify and hold harmless the other party and its officers, directors,employees, agents, and representatives from and against any liabilities,losses, damages, costs, and other expenses incurred by them as a result of any third party claim arising from any of the following: (a) any alleged or actual breach of Section 2 (Confidential Information); or (b) the gross negligence or willful misconduct of the indemnifying party.
5.2 IP Infringement.
Orange will, at its expense, defend, indemnify and hold harmless Customer and its officers, directors, employees, agents and representatives from and against any liabilities, losses, damages, costs, and other expenses incurred by them as a result of third-party claim that the Orange OS or any Orange Device,infringes, violates, or misappropriates any valid third-party intellectual property or proprietary right (“Infringement Claim”). Orange’s obligations under this Section 5.2 do not apply to any Infringement Claim arising from (i) any information, technology or materials to the extent not created or provided by Orange, (ii) compliance by Orange with Customer’s designs, specifications or instructions, (iii) modifications performed by a party other than Orange or a party acting on its behalf, (iv) combination with other products, technology, information, processes or materials not provided by Orange (to the extent the claim is directed against the combination), (v) where Customer continues allegedly infringing activity after being notified or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Orange OS or any Orange Device other than in accordance with its documentation and this Agreement. If an Infringement Claim is brought or threatened, Orange may, at its sole option and expense: (a) procure for Customer the right to continue use of the infringing material; (b) modify, amend or replace the infringing material so that it becomes non-infringing with functionality substantially the same or better than the infringing material;or, if neither (a) or (b) is in Orange’s opinion commercially practicable, (c)terminate this Agreement (or the Orders or Orders for the Product or Services with the allegedly infringing material) and in the case of the Orange OS,refund to the Customer the prorated amount of any fees prepaid by Customer for Orange OS Services not yet provided, or, in the case of Orange Devices, refund to the purchaser the fees paid for the Orange Devices under the relevant Order or Orders, less reasonable depreciation. This Section states the entire liability of Orange with respect to infringement of any patent, copyright, trade secret or other intellectual property right by the Orange OS or any Orange Device.
5.2 Process.
Indemnificationobligations under this Agreement are conditioned upon the indemnified party providing the indemnifying party with: (a) prompt written notice of the claim (provided that a failure to provide notice will only relieve the indemnifying party of its indemnity obligations if it is materially prejudiced by the failure); (b) the option to solely control the defense and settlement of the indemnified claim (provided that the indemnifying party may not enter into any settlement of an indemnified claim that imposes a direct financial liability or other obligation on the indemnified party or includes an admission of fault by the indemnified party without the approval of the indemnified party); and (c) reasonable information and assistance in connection with the defense and settlement of the claim (at the indemnifying party’s expense).
6. Limitation of Liability.
NEITHER PARTY WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY IN CONNECTION WITH THIS AGREEMENT FOR ANY SPECIAL,INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.ORANGE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID TO ORANGE UNDER THIS AGREEMENT. THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION DO NOT APPLY TO (A) TO LIABILITY TO THE EXTENT IT MAY NOT BE LIMITED UNDER APPLICABLE LAW, (B) BREACH OF SECTION 2 OR 3.3, OR (C) THE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT. THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7. Termination.
7.1 Right to Terminate.
If a party materially breaches this Agreement, the other party may notify the breaching party in writing describing the breach and, if the breach is not cured within thirty (30) calendar days after receipt of notice, then the other party may immediately terminate this Agreement, including without limitation any subscriptions to the Orange OS Services then in effect under this Agreement. Either party may terminate this Agreement, including without limitation any subscriptions to the Orange OS Services then in effect under this Agreement,immediately if the other party terminates or suspends its business as a result of bankruptcy, insolvency or similar event. Except as otherwise provided in this Section or in the Additional Terms or main body of the Order, this Agreement (the Order)is non-cancellable and may not be terminated.
7.2 Right to Suspend Products and Services.
In the event Customer is in breach of this Agreement (including failure to pay when due), Orange will have the right to suspend shipment of any Products, suspend Customer's access to or its performance of any Services or set any Orange Devices then in use to Always On mode until the breach is cured. “Always On” means the outlet will function as a standard outlet but will not connect to the Orange OS to track Driver usage, Drivers will not be charged for any power provided through the Orange Device, and the owner/operator of the Authorized Location identified on the Order will not receive any payments for usage of the Orange Devices at the installation location.
7.3 Effect of Termination.
Upon the expiration or any termination of this Agreement, Customer will immediately pay all unpaid fees for the applicable Products and/or Services, and all rights and obligations under the Agreement, except as provided in Section 7.4, will immediately cease. The outlet portion of the Orange Devices for terminated subscriptions will be placed into Always On mode (if Customer does not place the Orange Devices in Always On mode prior to expiration or termination, Orange may do so)
7.4 Survival.
Rights and obligations that have accrued prior to expiration or termination and provisions of this Agreement that expressly or by their nature survive termination or expiration of this Agreement will survive termination or expiration of this Agreement,including Section 2 (Confidential Information), Section 3 (Ownership; Restrictions on Use), Section 4 (Representations and Warranties), Section 5 (Indemnification), Section 6 (Limitation of Liability), Section 7 (Term and Termination) and Section 8 (Miscellaneous) of these General Terms.
8. Miscellaneous.
8.1 Governing Law and Dispute Resolution.
The Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and each of the parties consents to exclusive jurisdiction and venue in the state and federal courts located in the State of California.
8.2 Independent Contractors.
Orange and Customer are independent contractors, and nothing in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Neither party has the authority to bind or make any commitment on behalf of the other party.
8.3 Entire Agreement.
The Agreement is the entire agreement between Customer and Orange with respect to its subject matter and supersedes all prior representations, agreements and understandings. Unless expressly included in this Agreement, no standard terms and conditions provided by either party (such as browsewrap or clickwrap terms provided by Orange or pre-printed terms and conditions on or incorporated in Customer purchase orders) will apply to this Agreement or any Products or Services purchased or provided under it.
8.4 Amendments and Waivers.
Any modification or amendment to this Agreement must be agreed to by both parties in writing, and any waiver of any provision ofthis Agreement must be in writing and signed by the waiving party. Failure toenforce or require performance of any provision of this Agreement is not awaiver of the provision and will not affect the right of either party tootherwise enforce the provision.
8.5 Severability.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, the invalidity,illegality, or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable the provision in any other jurisdiction. If any provision is determined to be invalid, illegal, or unenforceable, the parties will negotiate in good faith a mutually acceptable modification to this Agreement to effect the original intent of the parties as closely as possible.
8.6 Assignment; Subcontracting.
Neitherparty may assign any of its rights or obligations under this Agreement without the other party’s prior written consent, except that Orange may assign all of its rights and obligations under this Agreement without Customer’s consent to a successor-in-interest in connection with a sale of substantially all of Orange’s business or assets relating to this Agreement and that Orange may use third-party subcontractors to perform obligations of Orange under this Agreement without Customer’s consent. Orange will retain full responsibility for the performance of any subcontracted obligations.
8.7 Publicity.
Customer consents to Orange’suse of Customer’s name and logo on Orange’s website and marketing materials toidentify Customer as a customer of Orange and describe Company’s use ofOrange’s products and services.
8.8 Force Majeure.
Neither party will be liable to the other party for any delay or failure to fulfill its obligations under this Agreement (except for payment obligations) that results from circumstances beyond the party’s reasonable control.
8.9 Notices.
All notices or other communications required or permitted to be given pursuant to this Agreement will be in writing and will be considered properly given or made to a party if hand delivered, mailed first class mail (postage prepaid and return receipt requested) or sent by recognized overnight courier service (e.g., Federal Express, DHL, UPS) to the party at its address on the opening page of the Agreement (or as updated pursuant to this Section) or emailed, if to Orange at legal@orangecharger.com and if to Customer at the primary email address associated with Customer’s Orange OS Account. Either party may update its address by giving notice under this Section.
8.10 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
8.11 Execution.
This Agreement may be executed in counterparts and exchanged by facsimile or electronically scanned copy exchanged via email or via electronic signature. Each counterpart is an original and all counterparts together will constitute one and the same Agreement.