Terms Of Use

as updated on March 21, 2019

This ToU and other applicable documents (if any) form Agreement between Orangear LLC, a legal entity incorporated under the laws of the state of Nevada, USA ("Orangear”, “Company”, “we”, “us”, “our”), and you (“Tenant”, “User”, “you”, “your”). If you do it on behalf of a legal entity - “you” (and all other references to “you” as mentioned above) means such company.

By access and use of Orangear’s Products you agree to be bound by these Terms of Use and the documents expressly incorporated herein by reference (this "ToU") which describe the terms and conditions applicable to your access and use of the Products and/or the Services.

ORANGEAR may at any time make changes to this ToU by posting modified Terms of Use on the Website and/or inside the Products. Please, review from time to time relevant page with this ToU in order to be updated in cases of any changes. Your use/continued use of the Products and/or the Services explicitly demonstrates that you agree to this ToU (and then current version of this ToU) and constitutes your binding consent to its terms, including any changes and modifications that ORANGEAR makes from time to time.

For your convenience, the last revision date is included at the top of this page.

Definitions

API – application programming interface of the Products provided to user, which enables user to access the Products not through Orangear’s media properties, but through user’s own media properties.

API-User – person or company to whom we provided API for access to the Products and the Services leased to him.

Lease – Orangear’s provision of access to the Products, which result in subscription use (purchase of one of the tariff plans) by the user.

Product(s) – software solutions developed and owned by Orangear, including, but not limited to Performance Marketing Platform, Video Advertising Platform, Checker, Antifraud, Business Intelligence, Uniqueclicks, Whitelabel and other products, software solutions, business solutions as applicable.

Service(s) – result and/or any benefit user receive / may receive / supposed to receive while using the Products.

Services Data – data you receive while using the Products (e.g. campaign statistics, number of clicks, number of impressions, conversions, geolocation, etc.).

Subscription – activities of the user regarding purchase of one of the tariff plans.

Tariff plan – quality and/or quantity characteristics of possible use of the Products with the established price and time of such use.

Tenant/user/you/your – person or company to whom we provided access to (leased) the Products. To make it clear any person or company accessing, using, or benefiting in any way from the Products through API-User is not considered as Orangear’s user for purposes of this ToU (such person or company is considered User’s Partner). Therefore, whenever we use “Tenant”, “User”, “you”, “your” – this is not referral to the User’s Partner.

Third Parties – any other Party which is not Orangear or user.

User’s Partners – person or company who access and use the Products and/or the Services through API-User.

Website – website of Orangear LLC, located at https://orangear.com.

1. Products.

Agreement between us regarding your use of the Products and/or the Services shall commence upon acceptance of this ToU at the Website, or when signed by the user in writing, or at the first instance of access and/or usage of the Products and/or the Services. Agreement is valid until its direct termination.

Subject to this ToU and other applicable documents (as expressly stated herein) we will lease you access to the Products. Products are leased, not sold. You have no ownership right, title or interest in the Products leased to you. You can only use the Products and receive the Services as expressly permitted herein. The lease is limited by the calendar period and the volume of the tariff plan.

Our Products are software solutions which are designed to provide possibility to receive certain results (e.g. view mobile marketing analytics of your campaigns, control the way your mobile marketing campaigns executed, stop them, check mobile marketing offers, check statistics of campaign deliverables, communicate with your counterparts, issue invoices for your counterparts within the relevant mobile marketing campaign, etc.) - the Services.

Additional details of lease of the Products can be found in the Subscription Agreement.

Additional details of lease of the API for the Products can be found in the API Agreement.

Additional details of minimum vital characteristics and support of the Products can be found in the Service Level Agreement.

ORANGEAR may stop offering and/or supporting the Products and/or the Services at any time. In this case we will provide the relevant notice on the Website and/or notify you by email.

2. Modification of Products.

You understand and agree that ORANGEAR may at any time change, modify or review the Products and/or the Services (or any part thereof), may terminate or restrict the use of the Products and/or the Services (or any part thereof) for any reason with notice or without such. You must agree to all changes, modifications, and revisions if you choose to continue using the Products and/or the Services. By continuing to use the Products and/or the Services, you agree to the then-current version of the Products and/or the Services. If at any point you do not agree to any portion of the then-current Products and/or Services, you must immediately stop using the Products and/or the Services and notify us about this.

We may chose to provide you with relevant notice, but in no way are obliged to.

ORANGEAR reserves the right to add or remove information, content or the Services from the Products, as well as the Products itself at any time at its sole discretion.

3. Requirements for Access. Registration. Your account.

Before you can access and use the Products and the Services, you should send us relevant request via form on the Website (or other channel of communications if applicable). When submitting such request you required to explicitly agree to this ToU and the Privacy Policy, which you will be deemed to have done by accessing and/or using the Products and/or the Services.

By providing relevant request, accessing and/or using the Products and/or the Services you represent, warrant and covenant that you have all the rights and is duly authorized to act on behalf of your company in case you register, use, access, make payments and/or use the Products and/or the Services in interest and on behalf of such company. You represent and warrant, that there is no conflict between any of your actions regarding the Products and/or the Services and other agreements, obligations, deals, laws, etc. applicable to you.

You should not use the Products and/or the Services in case your are a competitor of Orangear, or you advertise our competitors, or you are an owner, owned by or affiliate with our competitor.

We will review your request for the Products and provide you will our answer. We may decline you access, registration, use, etc. for any reason we deem appropriate or no reason at all. In cases we chose to provide with the access, you will be required to register in the Product system, by providing data required by the registration form.

After registration is completed you’ll have your own login and password for entering into your account. You are strongly recommended to change the generated password as soon as you’ll enter the Products (first sign-in). We do not have any access to your changed password, thou we know your login and can identify you when you enter your account through that login.

You are solely responsible for any fees, taxes, declaring, etc. that you incur when accessing, using and/or benefiting from the Products and/or the Services.

You on your own determine your businesses (projects, companies, proprietary technologies, etc.) in which you use/would use the Products. Neither we control such choices of the Tenant, nor we obliged to.

You represent and warrant that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside.

4. Permitted Use.

You are expressly permitted to use the Products to: view mobile marketing analytics of your campaigns, control the way your mobile marketing campaigns are executed, stop them, check mobile marketing offers, check statistics of campaign deliverables, communicate with your counterparts, issue invoices for your counterparts within the relevant mobile marketing campaign, and in other ways expressly pointed in the technical documentation we will provide you with after your registration and subscription for one of the tariff plans.

ORANGEAR permits you to access and use a single copy of the Products solely for your personal, non-commercial use (e.g. you can use the Products and/or the Services as a necessary software when exercising some internal business operations, but not as a subject of any commercial deal of any kind).

After registration, you will have single access point (meaning you will be able to access the Products only through the account your’ve registered). You will be able to create necessary amount of accounts (sub-accounts) for your employees (as limited by the tariff plan, technical possibility and technical documentation).

You may add necessary information to the Products in order to receive the Services (e.g. link to marketing offer). When adding any information to the Products and/or the Services you represent and warrant that you have all the necessary rights to use/provide such information (including all the restrictions and consents required by corporate rules, data protection laws and regulations).

You covenant and warrant not to use the Products in any forbidden way as stated herein and in other applicable agreements, laws and regulations.

5. Forbidden Use.

Without limiting the generality of the foregoing and notwithstanding anything to the contrary, in connection with the Products and/or the Services you are expressly forbidden to:

  • execute, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Products and/or the Services.
  • combine, link, bind, build in, etc. the Products and/or the Services into your own software, products, services, etc. which you offer to any third parties (e.g. your partners, customers, affiliates, agents, clients, contractor, and so on) without our prior written individual permission granted by authorized top-level executive officer of ORANGEAR (CEO, COO, CFO).
  • license, sub-license, create derivative works from, sell, resell, assign, rent, lease, transfer the Products, the Services, any information, content, data, etc. received from ORANGEAR, act as the Products and/or the Services agent or bureau, or grant any rights (e.g. right to access under your name) regarding the Products and/or the Services to any other person or entity.
  • violate any applicable law or regulation (illegal purposes, illegal use).
  • use the Products and/or the Services to make available, promote, participate in, plug in, popularize, advertise, market, etc. any offer, application, website, video, material, data, content or information that contain (or may be interpreted to contain) sexism, discrimination, child abuse, minor rights violations, terrorism financing, money laundering, crimes, human trafficking, etc. or infringes any copyright, trademark, patent, trade secret, or another right of any party (including rights of privacy or publicity).
  • create, collect, process, transmit or store information/data that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Products and/or the Services or interferes/violates privacy (including, but not limited to phishing, pharming or theft of any person’s identity, whether a real identity or online nickname or alias); (iii) performs any commercial communication not permitted by applicable law (e.g. spam); (iv) constitutes harassment or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or court order.
  • use the Products and/or the Services for fraudulent activity (such acts include, but are in no way limited to, using automated means to increase the number of clicks through the links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts, click-fraud, etc.).
  • use any persons, means, devices or arrangements to commit fraud, violate any applicable law, regulation, falsify information in connection with the Products and/or the Services or exceed permitted access to the Products and/or the Services.
  • use scripts.
  • remove any proprietary notices from the Products and/or the Services.
  • make any false, misleading, harmful, or deceptive statement or representation regarding ORANGEAR, the Products and/or the Services;
  • use the Products and/or the Services in any way not expressly permitted in this ToU or individual agreement/permission between you and ORANGEAR;
  • use the Products and/or the Services to falsify information in connection with the generation of payments.
  • use the Products and/or the Services as a commodity for any commercial purpose.
  • use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions, software that is designed to provide a means of surreptitious or unauthorized access to distort, delete, damage or disassemble the Products and/or the Services, or other users information, or for sake of fraudulent activity, or for any other purpose.
  • obtain or attempt to obtain any information of other account holders (users) as well as any other their data.
  • intercept, examine or otherwise observe any proprietary communications protocol used by the Products and/or the Services, whether through the use of a network analyzer, packet sniffer or other device that allows to receive such information

Without limiting the generality of the foregoing and notwithstanding anything to the contrary, you warrant that you will not: (a) establish, assist, or get involved in any type of attack/offense upon the Products and/or the Services (e.g. which in any way attempts to disrupt the Products and/or the Services, any other person’s use of the Products and/or the Services or integrity of security and protection mechanisms of the Products and/or the Services); or (b) attempt to, gain or help other persons/organizations to gain unauthorized access to the Products, the Services, information provided by other users, our partners and affiliates, the computer systems or networks connected to the Products and/or the Services, or processing systems for payment, data, etc.

6. Internal Investigation.

In order to ensure the Products and/or the Services are not dragged into some illegal or other forbidden activity, we may conduct internal investigation regarding any suspicious activity of the User which on our reasonable belief is in breach of this ToU and or any applicable law, regulation, etc. After the investigation been conducted we will act in accordance with the received results of such investigation (e.g. renew your access to the Products and/or the Services; terminate your access to the Products and/or the Services permanently; provide information regarding illegal activity to the applicable law enforcement; etc.).

In case we need some additional data from you (e.g. in order to determine was there any kind of violation of the ToU) we will provide you with an inquiry for such additional data within 5 business days after investigation started.

You shall have 5 business days after you received our inquiry to provide us with the additional data we asked for.

In case you haven't provided necessary additional data, we shall interpret controversial facts (if any) in order to protect ourself (e.g. you haven't provided requested data to confirm there were no violation of applicable law – we shall interpret your failure in a way that there is sufficient reason to conclude that violation had occurred).

7. Stop of Use. Termination of Use.

You can stop to use the Products and/or the Services whenever your want. You should notify us about your decision in writing.

You can terminate your account (agreement between us) and your use of the Products and/or the Services whenever your want. You should notify us about your decision in writing.

We shall fulfill your request for stoppage or termination of your account within twenty-four (24) hours in business (banking) days (time zone UTC +2). Be aware that we delete your account and all the data of terminated account withing approximately twenty-four (24) hours in business (banking) days (time zone UTC +2) starting from the date of your notification of termination.

Be aware that we delete data (including the Services Data) of inactive accounts withing approximately (i) for the unused statistics – one (1) year starting from the date of creation of such data, (ii) for the offers in “stop” mode – within six (6) month starting from the date of stop, and (iii) for the data regarding clicks, acquisitions, installs, etc. - within three (3) month starting from the date of creation of such data. We do not guarantee that any of your data shall be accessible after you’ll renew your use of the Products and/or the Services.

You are strongly advised to copy/download your data (the Services Data) every 30 days in order to keep necessary copies of your data (the Services Data) you may need in the future. You should not rely on accessibility of your data (the Services Data) in the Products.

We can stop your access and/or use of the Products and/or the Services at any time at our absolute sole discretion without prior notice to you. Without limiting the generality of the foregoing and notwithstanding anything to the contrary, we will stop (pause) your access/use of the Products and/or the Services if (i) we received information or reasonably concluded that you’ve been using the Products and/or the Services with violation of this ToU (and the documents incorporated herein by reference), any applicable law or regulation, (ii) you’ve fully used (deplete, reached the limit) the amount of the Services in your tariff plan, or (iii) we haven’t received relevant payment of fees for your usage of the Products and/or the Services. As well, we may stop (pause) your access/use of the Products and/or the Services for the time necessary for maintenance of the Products and/or the Services (either regular or extraordinary/unpredicted).

We can terminate agreement between us and your use of the Products and/or the Services at any time at our absolute sole discretion without prior notice to you. Without limiting the generality of the foregoing and notwithstanding anything to the contrary we shall terminate your access/use of the Products and/or the Services if (i) we’ve reached a reasonable conclusion that you violated this this ToU (and the documents incorporated herein by reference), any applicable law or regulation, (ii) your country is under an applicable economic, political or other sanctions which forbid us to work (provide products, services, support, receive payments, etc.) with the residents of such countries, (iii) we’ve decided to stop offering and leasing the relevant Products and/or Services, (iv) your account have been inactive for six (6) month and more. We may terminate for any other reason as provided by applicable law, regulation or agreement between us.

Termination is effective immediately upon notice to you, unless expressly pointed otherwise in the relevant notice.

Disclaimer: the Products and/or the Services are offered with your acknowledgement and understanding that ORANGEAR may terminate any user’s account and access to the Products and/or the Services at any time, for any reason or no reason, including without limitation for any violation of this ToU (and the documents incorporated herein by reference) or Privacy Policy, fraud or illegal activity, after receiving claims from other users or authorities, after discovering information indicating misuse, etc.

8. Fees. Refunds.

We lease you access to the Products and/or the Services subject to your payment of relevant fees, as pointed on the Website and/or in the applicable written agreement between ORANGEAR and you.

You may be granted access to the Products and/or the Services without fees (or with substantially reduced fees) for limited trial period. You shall be subject to this ToU notwithstanding the payment of fees (e.g. during the trial period, when you’ve delayed payment, User’s Partners, etc.).

BE AWARE THAT, AS A GENERAL RULE, the Products and/or the Services ARE NOT SUBJECT TO RETURN AND/OR REFUND, EXCEPT FOR THE CASES DIRECTLY POINTED IN OUR RETURN, CANCELATION AND REFUND POLICY.

9. API.

We may lease you the API for Products, which enables you to place access point to the Products on your own media properties (e.g. domain name).

The API constitutes of combination of software elements, specifications and documentation developed by Orangear for the purpose of facilitating interactions between a API-User website and the Orangear. The API offers the API-User modifiable tools and services which allows the API-User to use the Products in such a way that make it possible to receive the Services by User’s Partners.

Additional details of lease of the API can be found in the API Agreement.

It is your direct obligation and you covenant to ensure that the User’s Partners accepted and adhere to this ToU (and the documents incorporated herein by reference) and the Privacy Policy. This ToU (and the documents incorporated herein by reference) shall be applicable to the User’s Partners in the following part (sections): Disclaimer of Warranties, Limitation of Liability, Permitted Use, Forbidden Use, Governing Law; Jurisdiction, Intellectual Property Rights. DMCA, Third Party’s Solutions and Services, Miscellaneous, Data and Privacy, Mutual settlement procedure, Links Policy, Internal Investigation, Confidentiality.

You are fully responsible for all of your User’s Partners actions (inactions) regarding the Products and/or the Services.

10. Intellectual Property Rights. DMCA.

The Products, the Services, our logo, original content, source code, solutions, design, etc. are the exclusive intellectual property of ORANGEAR. Unauthorized use of any ORANGEAR’s intellectual property shall constitute a violation of international legislation, federal and state laws.

The Products, the Services and the content made available through the Products and/or the Services are protected by the U.S. and international copyright laws. You may not use, modify, reproduce or distribute any of the content, or the design or layout of the Products and/or the Services, or individual sections of the content, design or layout of the Products without ORANGEAR’s express prior written permission.

You acknowledge and agree that when any ideas or proposals regarding changes or improvements of the Products and/or the Services submitted to Orangear (no matter how: orally, through email, personal account, by comment on the Platform etc.) you free of charge give to Orangear an irrevocable, perpetual, royalty-free, transferable, worldwide, sub-licensable license for use (including commercial use of any kind) of such intellectual property.

DMCA

In case you believe that your intellectual property right been infringed in connection with the Products and/or the Services (or any part thereof), or by people who use the Products and/or the Services, please forward the following information to the mail: legaldept@orangear.com

Please, specify in your letter the following: identify yourself (name, address, email); specify the object of intellectual property you believe been violated and its location; describe the character of violation; put a statement that provided information is correct (under the possibility of penalty for perjury) and that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.

11. Third Party’s Solutions and Services.

The Products may contain, use, or be connected with Third Party’s solutions, such as chat bots, proxy servers, hosting servers, and other instruments, which help us to provide you with the Services (“Third Party’s solutions”). We may use subcontractors, advertising agencies, networks, outsource staffing, outsourcing, etc. for some of our business operations (“Third Party’s services”). You acknowledge that the accessibility of the Products and/or the Services may depend on Third Party’s solutions and/or Third Party’s services.

This ToU DOES NOT apply to any of such Third Party’s solutions and Third Party’s services.

As a general rule, you will not intersect with such Third Party’s solutions and Third Party’s services directly, as they are part of the way the Products work (so, there are no additional actions required from you).

Nevertheless, some Third Party’s solutions and Third Party’s services may require you express consent, even when used through the Products. Please, be aware that Third Party’s solutions and Third Party’s services work on the basis of other technologies, websites, software, etc. which are not owned by us and which have their own terms of use and access (e.g. special software, the age of the user etc.). Before using the Products, which contain relevant Third Party’s solutions and Third Party’s services that require your express consent, you should carefully read terms and conditions (terms of use) of access and use of such Third Party’s solutions and Third Party’s services. It is your sole responsibility to use the Products, and we take no responsibility regarding your use of the Products which comes from your unfamiliarity with relevant terms and conditions (terms of use) of access and use of such Third Party’s solutions and Third Party’s services.

Our use of the Third Party’s solutions and Third Party’s services does not mean we advise in any way for you to use such Third Party’s solutions and/or Third Party’s services or agree to their terms and conditions (terms of service).

12. Third Parties.

If any Third Parties receive the Services, interact with the Products, or benefit from the Products and/or the Services using your account or as a result of your actions (inactions), you are fully responsible for such Third Parties and any of their actions regarding the Products and the Services, as well as for all the consequences of such Third Parties actions (inactions).

13. Links Policy.

The Products may contain links to websites, applications, software, networks, etc. (“media properties”) operated by other parties. ORANGEAR provides these links to the media properties as a convenience, and use of these media properties is at your own risk. The linked media properties are not under the control of ORANGEAR, and ORANGEAR is not responsible for the content available on the media properties. Such links do not imply ORANGEAR’s endorsement of information or material on any other media properties and ORANGEAR disclaims all liability with regard to your access to and use of such linked media properties.

In case you desire to put link to the Products and/or the Services on your own (or any third party’s) media properties, you must adhere to ORANGEAR’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with ORANGEAR’s and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with ORANGEAR, (iii) when selected by a user, the link must display the Products and/or the Services on full-screen and not within a “frame” on the linking Products, and (iv) ORANGEAR reserves the right to revoke its consent to the link at any time and in its sole discretion.

14. Location of Products.

The Products and the Services are operated by ORANGEAR, established in the United States. Those who choose to access the Products, and/or the Services from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws. If you access the Services from and are a resident of the European Community and you are a consumer, you may have other or additional mandatory rights or remedies by law.

We use the Third Party’s solutions and Third Party’s services, which may be located/registered in third countries (e.g. EU, Eastern European countries, etc.).

15. Policy Regarding Children.

If you are under 18 (or other minimum allowed by law age in the respectful jurisdiction), please do not submit any personally identifiable information to ORANGEAR. We state that the Products and the Services are not designed for children and any person under 18 years (or other minimum allowed by law age in the respectful jurisdiction) and we have no intent them to access and use the Products and the Services. We do not knowingly collect information regarding such users or let them register, access or use the Products and the Services.

16. DISCLAIMER OF WARRANTIES.

THE PRODUCTS, THE API AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR ACCESS AND/OR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING OUR OF COURSE OF DEALING, USAGE OF TRADE. ORANGEAR MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF THE PRODUCTS, THE API AND THE SERVICES. ORANGEAR DOES NOT WARRANT THAT THE PRODUCTS, THE API AND THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS. ORANGEAR EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF ITS USERS OR THEIR SOFTWARE, SERVICE, COURSE OF DEALING, BUSINESS STRATEGY, CUSTOMER POLICIES, ETC.

YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE PRODUCTS, THE API AND THE SERVICES IS AT YOUR SOLE ABSOLUTE RISK. ORANGEAR DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE PRODUCTS, THE API AND THE SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE PRODUCTS, THE API AND THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PRODUCTS, THE API AND THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THAT THE PRODUCTS, THE API AND THE SERVICES ARE ACCURATE OR RELIABLE.

BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW SUCH KIND OF DISCLAIMER, THE FOREGOING MAY NOT APPLY TO YOU.

17. LIMITATION OF LIABILITY.

IN NO EVENT SHALL ORANGEAR, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE PRODUCTS, THE API AND THE SERVICES, THE WEBSITE, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF ORANGEAR. IN NO EVENT WILL RELATED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR CONNECTED TO THE PRODUCTS, THE API, THE WEBSITE AND THE SERVICES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF INFORMATION, BUSINESS INTERRUPTION OR LOSS OF BUSINESS OPPORTUNITY. THIS LIMITATIONS OF LIABILITY APPLY: (I) TO LIABILITY FOR NEGLIGENCE; (II) REGARDLESS OF THE FROM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (III) EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT ORANGEAR HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF ANY SUCH DAMAGES; AND (IV) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. RELATED PARTIES CUMULATIVE LIABILITY TO YOU OR ANY OF YOUR AFFILIATES OR THIRD PARTIES, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE (1) USD.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILIT FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS THE LIABILITY OF ORANGEAR, ITS RELATED PARTY’S AND AFFILIATES SHALL BE LIMITED TO THE LOWES EXTENT PERMITTED BY LAW.

18. Indemnification Provisions.

You agree and covenant to indemnify, defend and hold ORANGEAR and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees, resulting from or arising out of your use of the Products and/or the Services or any breach by you of this ToU (and the documents incorporated herein by reference) or any other agreements, rules or policies that ORANGEAR may issue for the Products and/or the Services from time to time.

You agree and covenant to indemnify, defend and hold ORANGEAR and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees, resulting from or arising out of your affiliates, contractors, executives, partners, customers, User’s partners, etc. actions (inactions) regarding the Products and/or the Services or any breach by your affiliates, contractors, executives, partners, customers, User’s partners, etc. of this ToU (and the documents incorporated herein by reference) or any other agreements, rules or policies that ORANGEAR may issue for the Products and/or the Services from time to time.

19. Governing Law; Jurisdiction.

This ToU is governed by and construed under the laws of the State of California, USA, without regard to conflict of law principles. All disputes arising out of or related to your use of the Products and/or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles County, California and you agree to submit to the personal jurisdiction and venue of such courts. If either you or ORANGEAR commences a lawsuit for a dispute arising under this ToU or relating to the Products and/or the Services, all of the issues in such action, whether of fact or law, shall be submitted to general judicial reference pursuant to California Code of Civil Procedure sections 638 and 641 through 645.1 or any successor statutes thereto.

You agree that the you may bring (participate in, take part, organize, etc.) claims against us only in an individual capacity and not in a class action or representative proceeding. All claims, suits, etc. under this ToU (and the documents incorporated herein by reference) shall be conducted on an individual (and not a class-wide) basis and a court shall have no authority to award class-wide relief. You acknowledge and agree that this ToU specifically prohibits you from commencing court proceedings as a representative of others or joining in any court proceedings brought by any other person (entity).

The provisions and use of the United Nations Convention on Contracts for the International Sale of Goods to relations arising out of this ToU or relating to the Products and/or the Services is expressly excluded.

20. Mutual settlement procedure.

You and ORANGEAR agree that parties will try to resolve all disputes, controversies and claims related to this ToU or relating to the Products and/or the Services by mutual settlement procedure, which may be initiated by either party by sending a written notice requesting settlement procedure to the other party.

Parties will have 60 calendar days to solve all controversies through negotiations and mutual settlement. In case they fail to do so, a dispute shall be brought to the relevant court as determined in article 19 above.

21. Data and Privacy.

We respect your right to privacy. We are committed to ensure processing of your personal data as required by the relevant data protection laws.

By accessing and/or using the Products or the Services, you represent and covenant that you have read and consented to our Privacy Policy in addition to this ToU. ORANGEAR may revise the Privacy Policy at any time, and the new versions will be available on the Website/Products. If at any point you do not agree to a whole or any part of the Privacy Policy, you must immediately stop using the Products and/or the Services. By continuing accessing and/or using the Products and/or the Services you explicitly demonstrate your consent to the Privacy Policy and this ToU.

Please, be aware that we may disclose your identity and necessary information about you to our legal advisors, law enforcement agencies, whenever we are obliged to do so by court order or data protection authority, and in other cases permitted by law (e.g. when such disclosure is required to protect our rights under this ToU in case of your violations).

For more information about our data protection and data processing procedures see the Privacy Policy.

22. Communications.

We may contact you through several channels of communication at our sole discretion to submit necessary information we deem important and relevant (“notice”).

We may contact you via email you provided us with during registration, or when submitting application/request for registration, to inform you about: expiration of your account, unusual activity of your account, stop and/or termination of your account, you are in debt, settlement of demands, indemnification demands, dispute resolution (mutual settlement procedure), maintenance notification, force majeure events, data breach notifications, termination of work of the Products and/or the Services, providing you with an invoice, request for information in cases of internal investigation or when it is necessary to fix the normal work of your account, changes in the terms of use and / or privacy policy, our latest news regarding the Products and/or the Services, latest post in our blog, in other cases when authorized by law.

We may contact you via phone number (through call and/or mobile messengers: WhatsApp, Telegram, Facebook Messenger, Viber, WeChat, Line, etc.) and/or your skype account you provided us with during registration, or when submitting application/request for registration, to inform you about: expiration of your account, unusual activity of your account, stop and/or termination of your account, you are in debt, settlement of demands, indemnification demands, dispute resolution (mutual settlement procedure), maintenance notification, force majeure events, data breach notifications, termination of work of the Products and/or the Services, providing you with an invoice, request for information in cases of internal investigation or when it is necessary to fix the normal work of your account, changes in the terms of use and / or privacy policy, our latest news regarding the Products and/or the Services, latest post in our blog, in other cases when authorized by law.

We may contact you via your legal address you provided us with during registration, or when submitting application/request for registration, to inform you about: you are in debt, settlement of demands, indemnification demands, dispute resolution (mutual settlement procedure), force majeure events, data breach notifications, providing you with an invoice, request for information in cases of internal investigation, or in other cases when authorized by law.

As a general rule, we will communicate you any notices regarding the Products and/or the Services (changes, termination, pause, stop, etc.) via email. In cases of impossibility to reach you via email, we may choose other way of communication (in written to your legal address, by phone, by messenger, etc.) as described herein.

Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax.

23. Confidentiality.

For purposes of this ToU (and the documents incorporated herein by reference), “Confidential Information” means any non-public information, material, or item made available to User by the Orangear, or which comes to his attention that relates to Orangear or User’s use of the Products and/or the Services or other contractual relationship with the Orangear. Confidential Information includes but is not limited to all the following as it relates to Orangear: (a) products, plans, methods, techniques, know-how, designs, patterns, compilations, inventions, processes, procedures, improvements, discoveries, inventions, data, schematics, flow charts, mechanisms, research, development, engineering, code or method of manufacture; (b) pricing, sales data, users, trade secrets, intellectual property, marketing plans and spending, operational information, or other data relating to the current and future business and operations of Orangear; (c) analyses, compilations, studies, summaries, extracts or other groups of data created that User may be exposed to, relating to Orangear, and (d) materials, technical data, personal data, documentations, employees, contractors, contacts and other information concerning the operation, business, projects, market goals, financial affairs, products, services, customers and other information which concerns technical or financial details of Orangear.

User agrees to maintain all Confidential Information in strict confidence, and will not use Confidential Information except as necessary to use the Products. User will not print, copy, adapt, modify, or store Confidential Information other than as necessary to use the Products. User shall limit Confidential Information disclosure only to his employees (if any) who signed relevant NDA which will survive termination of relations between User and his employees of at least three (3) years. You agree that no Confidential Information shall be disclosed to any third party, affiliate, subsidiary, sub-affiliate, agent, or any other person/entity without the prior written consent of Orangear. Such written consent from the Orangear’s side should be signed by the authorized top-executive (CEO, COO, CFO).

Disclosure of Confidential Information is not precluded if such disclosure is: (a) in response to a valid order of a court or other governmental body or any political subdivision thereof; but User must first give Orangear (or a Orangear Affiliate if applicable) a reasonable period of not less than 30 days, if permissible under such order, to obtain an order requiring that Confidential Information not be disclosed or be used only for the purposes for which the order was issued; (b) otherwise required by law.

24. Miscellaneous.

You agree that no joint venture, partnership, employment, or agency relationship exists between you and ORANGEAR as a result of this ToU, your use of the Website and/or your use of (access to) the Products and/or the Services.

ORANGEAR may assign the rights, title, interest and obligations based on this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the rights, title, interest and obligations based on this ToU without ORANGEAR’S prior written consent, and any unauthorized assignment by you shall be null and void. Such written consent from the Orangear’s side should be signed by the authorized top-executive (CEO, COO, CFO).

If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect. If the severed provisions are crucial to the subject matter of this ToU, such provision shall be automatically changed as closely as possible to reflect the original idea of this ToU to the extent permitted by law.

Our failure to enforce any provision of this ToU or affiliated agreements shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. The express waiver from the Orangear’s side should be signed by the authorized top-executive (CEO, COO, CFO).

You hereby agree that ORANGEAR shall be entitled to appropriate equitable remedies with respect to your breaches of this ToU, as well as to other remedies otherwise available to us under applicable laws.

Some provided materials regarding the Products and/or the Services may be outdated and ORANGEAR makes no commitment to update such materials. As well, you should acknowledge that some of the Products and/or the Services mentioned on the Website and/or in our materials may not be available in your country and such references constitute no obligations (even if implied) of ORANGEAR to make available such Products and/or Services in your country. You should consult ORANGEAR regarding the availability of particular Products and/or Services in your country before subscribing or submitting to use the Products and/or the Services.

This ToU, including the documents expressly incorporated herein by reference, constitutes the entire agreement between you and us with respect to the Products and/or the Services and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Products and/or the Services.

Some provisions can be incorporated further by signing written documents regarding the exact ways of your use of the Products and/or the Services, and specific portions or features of the Products and/or the Services. If there is written Agreement between Orangear LLC and you concerning the subject matter herein, this written agreement shall have priority over documents on the Website, unless pointed differently in the relevant written agreement. Such written agreement from the Orangear’s side should be signed by the authorized top-executive (CEO, COO, CFO). All the documents not replaced by the written agreement remain valid and apply to the relations between Orangear and you.

Orangear shall not be liable for any failure, delay or interruption in work of its Products, provision of relevant services, providing results or documents, performing any term or condition as stated herein, due to cause(s) entirely beyond the control of Orangear (“force majeure event”). If force majeure event arises, we shall inform of such an event on the website or any other applicable way at our sole discretion as soon as commercially reasonably possible.

Sections regarding Indemnification Provisions, Disclaimer of Warranties, Limitation of Liability, Permitted Use, Forbidden Use, Governing Law; Jurisdiction, Fees. Refunds, Intellectual Property Rights. DMCA, Miscellaneous, Communications, Data and Privacy, Mutual settlement procedure, Links Policy, Third Party’s Solutions and Services, Internal Investigation, Confidentiality will survive termination or expiration of these ToU. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove any materials and data from its system (e.g. computes of its employees, servers, etc.).

Section or paragraph headings used in these ToU are for reference purposes only, and should not be used in the interpretation hereof.

25. Contact us.

If you haven’t found information on the subject matter, you think should be included into agreement with us, or want to offer improvement, or you have other questions regarding the Products and/or the Services, please contact us via email: support@orangear.com.

All notices given by you or required under this ToU shall be in writing and addressed to email: support@orangear.com

Please, be aware, that when you contact us, you provide us with certain amount of your personal data (e.g. email address, name, etc.) and such data shall be subject to the Privacy Policy.

Acknowledgement

IN ACCEPTING THIS TERMS OF USE, THE USER ACKNOWLEDGES THAT THE USER HAS READ THIS TERMS OF USE AND ALL THE INCORPORATED HEREIN DOCUMENTS, UNDERSTANDS THEM, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF ORANGEAR AGREEING TO PROVIDE THE PRODUCTS, THE API AND/OR THE SERVICES, THE USER AGREES TO BE BOUND BY THIS TERMS OF USE (AND OTHER DOCUMENTS INCORPORATED HEREIN BY REFERENCE).