Last Updated: 12 Jul, 2021.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND OrcaBPO. ("OrcaBPO") STATING THE TERMS THAT GOVERN YOUR PARTICIPATION AS AN OrcaBPO DEVELOPER. PLEASE READ THIS OrcaBPO DEVELOPER AGREEMENT (“AGREEMENT”) BEFORE PRESSING THE "AGREE" BUTTON AND CHECKING THE BOX AT THE BOTTOM OF THIS PAGE. BY PRESSING "AGREE," YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PRESS "CANCEL".
Relationship With OrcaBPO; OrcaBPO ID and Password: You understand and agree that by registering with OrcaBPO to become an OrcaBPO Developer (“OrcaBPO Developer”), no legal partnership or agency relationship is created between you and OrcaBPO. You agree not to represent otherwise. You also certify that you are at least thirteen years of age and you represent that you are legally permitted to register as an OrcaBPO Developer. This Agreement is void where prohibited by law and the right to register as an OrcaBPO Developer is not granted in such jurisdictions. Unless otherwise agreed or permitted by OrcaBPO in writing, you cannot share or transfer any benefits you receive from OrcaBPO in connection with being an OrcaBPO Developer. The OrcaBPO ID and password you use to log into your OrcaBPO Developer account cannot be shared in any way or with anyone. You are responsible for maintaining the confidentiality of your OrcaBPO ID and password and for any activity in connection with your account.
Developer Benefits: As an OrcaBPO Developer, you may have the opportunity to attend certain OrcaBPO developer conferences, technical talks, and other events (including online or electronic broadcasts of such events) (“OrcaBPO Events”). In addition, OrcaBPO may offer to provide you with certain services (“Services”), as described more fully herein and on the OrcaBPO Developer web pages (“Site”), solely for your own use in connection with your participation as an OrcaBPO Developer. Services may include, but not be limited to, any services OrcaBPO offers at OrcaBPO Events or on the Site as well as the offering of any content or materials displayed on the Site (“Content”). OrcaBPO may change, suspend or discontinue providing the Services, Site and Content to you at any time, and may impose limits on certain features and materials offered or restrict your access to parts or all of such materials without notice or liability.
Restrictions: You agree not to exploit the Site, or any Services, OrcaBPO Events or Content provided to you by OrcaBPO as an OrcaBPO Developer, in any unauthorized way, including but not limited to, by trespass, burdening network capacity or using the Services, Site or Content other than for authorized purposes. Copyright and other intellectual property laws protect the Site and Content provided to you, and you agree to abide by and maintain all notices, license information, and restrictions contained therein. Unless expressly permitted herein or otherwise permitted in a separate agreement with OrcaBPO, you may not modify, publish, network, rent, lease, loan, transmit, sell, participate in the transfer or sale of, reproduce, create derivative works based on, redistribute, perform, display, or in any way exploit any of the Site, Content or Services. You may not decompile, reverse engineer, disassemble, or attempt to derive the source code of any software or security components of the Services, Site, or Content (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by any licensing terms accompanying the foregoing). Use of the Site, Content or Services to violate, tamper with, or circumvent the security of any computer network, software, passwords, encryption codes, technological protection measures, or to otherwise engage in any kind of illegal activity, or to enable others to do so, is expressly prohibited. OrcaBPO retains ownership of all its rights in the Site, Content, OrcaBPO Events and Services, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any OrcaBPO intellectual property.
Confidentiality: Except as otherwise set forth herein, you agree that any OrcaBPO pre- release software, services, and/or hardware (including related documentation and materials) provided to you as an OrcaBPO Developer (“Pre-Release Materials”) and any information disclosed by OrcaBPO to you in connection with OrcaBPO Events will be considered and referred to as “OrcaBPO Confidential Information”. Notwithstanding the foregoing, OrcaBPO Confidential Information will not include:
(a) Information that is generally and legitimately available to the public through no fault or breach of yours;
(b) Information that is generally made available to the public by OrcaBPO;
(c) Information that is independently developed by you without the use of any OrcaBPO Confidential Information;
(d) Information that was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation; or
(e) Any third party software and/or documentation provided to you by OrcaBPO and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation. Further, OrcaBPO agrees that you will not be bound by the foregoing confidentiality terms with regard to technical information about OrcaBPO pre- release software, services and/or hardware disclosed by OrcaBPO, except that you may not post screen shots of, write public reviews of, or redistribute any such materials.
Nondisclosure and Nonuse of OrcaBPO Confidential Information: Unless otherwise expressly agreed or permitted in writing by OrcaBPO, you agree not to disclose, publish, or disseminate any OrcaBPO Confidential Information to anyone other than to other OrcaBPO Developers who are employees and contractors working for the same entity as you and then only to the extent that OrcaBPO does not otherwise prohibit such disclosure. Except for your authorized purposes as an OrcaBPO Developer or as otherwise expressly agreed or permitted by OrcaBPO in writing, you agree not to use OrcaBPO Confidential Information in any way, including, without limitation, for your own or any third party’s benefit without the prior written approval of an authorized representative of OrcaBPO in each instance. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of OrcaBPO Confidential Information. You acknowledge that unauthorized disclosure or use of OrcaBPO Confidential Information could cause irreparable harm and significant injury to OrcaBPO that may be difficult to ascertain. Accordingly, you agree that OrcaBPO will have the right to seek immediate injunctive relief to enforce your obligations under this Agreement in addition to any other rights and remedies it may have. If you are required by law, regulation or pursuant to the valid binding order of a court of competent jurisdiction to disclose OrcaBPO Confidential Information, you may make such disclosure, but only if you have notified OrcaBPO before making such disclosure and have used commercially reasonable efforts to limit the disclosure and to seek confidential, protective treatment of such information. A disclosure pursuant to the previous sentence will not relieve you of your obligations to hold such information as OrcaBPO Confidential Information.
Confidential Pre-Release Materials License and Restrictions: If OrcaBPO provides you with PreRelease Materials, then subject to your compliance with the terms and conditions of this Agreement, OrcaBPO hereby grants you a nonexclusive, nontransferable, right and license to use the Pre-Release Materials only for the limited purposes set forth in this Section 6; provided however that if such PreRelease Materials are subject to a separate license agreement, you agree that the license agreement accompanying such materials in addition to Sections 4 and 5 of this Agreement shall also govern your use of the Pre-Release Materials. You further agree that in the event of any inconsistency between Section 4 and 5 of this Agreement and the confidentiality restrictions in the license agreement, the license agreement shall govern. You agree not to use the Pre-Release Materials for any purpose other than testing and/or development by you of a product designed to operate in combination with the same operating system for which the Pre-Release Materials are designed. This Agreement does not grant you any right or license to incorporate or make use of any OrcaBPO intellectual property (including for example and without limitation, trade secrets, patents, copyrights, trademarks and industrial designs) in any product. Except as expressly set forth herein, no other rights or licenses are granted or to be implied under any OrcaBPO intellectual property. You agree not to decompile, reverse engineer, disassemble, or otherwise reduce the Pre-Release Materials to a human-perceivable form, and you will not modify, network, rent, lease, transmit, sell, or loan the Pre-Release Materials in whole or in part.
Developer Content License and Restrictions: As an OrcaBPO Developer, you may have access to certain proprietary content (including, without limitation, video presentations and audio recordings) that OrcaBPO may make available to you from time to time (“Content”). Content shall be considered OrcaBPO Confidential Information, unless otherwise agreed or permitted in writing by OrcaBPO. You may not share the Content with anyone, including, without limitation, employees and contractors working for the same entity as you, regardless of whether they are OrcaBPO Developers, unless otherwise expressly permitted by OrcaBPO. Subject to these terms and conditions, OrcaBPO grants you a personal and nontransferable license to access and use the Content for authorized purposes as an OrcaBPO Developer; provided that you may only download one (1) copy of the Content and such download must be completed within the time period specified by OrcaBPO for such download. Except as expressly permitted by OrcaBPO, you shall not modify, translate, reproduce, distribute, or create derivative works of the Content or any part thereof. You shall not rent, lease, loan, sell, sublicense, assign or otherwise transfer any rights in the Content. OrcaBPO and/or OrcaBPO’s licensor(s) retain ownership of the Content itself and any copies or portions thereof. The Content is licensed, not sold, to you by OrcaBPO for use only under this Agreement, and OrcaBPO reserves all rights not expressly granted to you. Your rights under this license to use and access the Content will terminate automatically without notice from OrcaBPO if you fail to comply with any of these provisions.
Compatibility Labs; Developer Technical Support (DTS): As an OrcaBPO Developer, you may have access to OrcaBPO’s software and/or hardware compatibility testing and development labs (“Labs”) and/or developer technical support incidents (“DTS Services”) that OrcaBPO may make available to you from time to time as an OrcaBPO developer benefit or for a separate fee. You agree that all use of such Labs and DTS Services will be in accordance with OrcaBPO’s usage policies for such services, which are subject to change from time to time, with or without prior notice to you. Without limiting the foregoing, OrcaBPO may post on the Site and/or send an email to you with notices of such changes. It is your responsibility to review the Site and/or check your email address registered with OrcaBPO for any such notices. You agree that OrcaBPO shall not be liable to you or any third party for any modification or cessation of such services. As part of the DTS Services, OrcaBPO may supply you with certain code snippets, sample code, software, and other materials (“Materials”). You agree that any Materials that OrcaBPO provides as part of the DTS Services are licensed to you and shall be used by you only in accordance with the terms and conditions accompanying the Materials. OrcaBPO retains ownership of all of its right, title and interest in such Materials and no other rights or licenses are granted or to be implied under any OrcaBPO intellectual property. You have no right to copy, decompile, reverse engineer, sublicense or otherwise distribute such Materials, except as may be expressly provided in the terms and conditions accompanying the Materials. YOU AGREE THAT WHEN REQUESTING AND RECEIVING TECHNICAL SUPPORT FROM DTS SERVICES, YOU WILL NOT PROVIDE OrcaBPO WITH ANY INFORMATION, INCLUDING THAT INCORPORATED IN YOUR SOFTWARE THAT IS CONFIDENTIAL TO YOU OR ANY THIRD PARTY. YOU AGREE THAT ANY NOTICE, LEGEND, OR LABEL TO THE CONTRARY CONTAINED IN ANY SUCH MATERIALS PROVIDED BY YOU TO OrcaBPO SHALL BE WITHOUT EFFECT. OrcaBPO SHALL BE FREE TO USE ALL SUCH INFORMATION IT RECEIVES FROM YOU IN ANY MANNER IT DEEMS APPROPRIATE, SUBJECT TO ANY APPLICABLE PATENTS OR COPYRIGHTS. OrcaBPO reserves the right to reject a request for access to Labs or for DTS Services at any time and for any reason, in which event OrcaBPO may credit you for the rejected lab or support request. You shall be solely responsible for any restoration of lost or altered files, data, programs or other materials provided.
Amendment; Communication: OrcaBPO reserves the right, at its discretion, to modify this Agreement, including any rules and policies at any time. You will be responsible for reviewing and becoming familiar with any such modifications (including new terms, updates, revisions, supplements, modifications, and additional rules, policies, terms and conditions)(“Additional Terms”) communicated to you by OrcaBPO. All Additional Terms are hereby incorporated into this Agreement by this reference and your continued use of the Site will indicate your acceptance of any Additional Terms. In addition, OrcaBPO may be sending communications to you from time to time. Such communications may be in the form of phone calls and/or emails and may include, but not be limited to, membership information, marketing materials, technical information, and updates and/or changes regarding your participation as an OrcaBPO Developer. By agreeing to this Agreement, you consent that OrcaBPO may provide you with such communications.
Term and Termination: OrcaBPO may terminate or suspend you as a registered OrcaBPO Developer at any time in OrcaBPO’s sole discretion. If OrcaBPO terminates you as a registered OrcaBPO Developer, OrcaBPO reserves the right to deny your reapplication at any time in OrcaBPO’s sole discretion. You may terminate your participation as a registered OrcaBPO Developer at any time, for any reason, by notifying OrcaBPO in writing of your intent to do so. Upon any termination or, at OrcaBPO’s discretion, suspension, all rights and licenses granted to you by OrcaBPO will cease, including your right to access the Site, and you agree to destroy any and all OrcaBPO Confidential Information that is in your possession or control. At OrcaBPO’s request, you agree to provide certification of such destruction to OrcaBPO. No refund or partial refund of any fees paid hereunder or any other fees will be made for any reason. Following termination of this Agreement, Sections 1, 3-5, 7 (but only for so long as the duration specified by OrcaBPO for such usage), 10-19 shall continue to bind the parties.
OrcaBPO Independent Development: Nothing in this Agreement will impair OrcaBPO’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that you may develop, produce, market, or distribute.
Use Of OrcaBPO Trademarks, Logos, etc: You agree that all goodwill arising out of your authorized use of OrcaBPO’s marks shall inure to the benefit of and belong to OrcaBPO.
No Warranty: OrcaBPO AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS (COLLECTIVELY, “OrcaBPO” FOR PURPOSES OF THIS SECTION 13 AND 14) DO NOT PROMISE THAT THE SITE, CONTENT, SERVICES (INCLUDING, FUNCTIONALITY OR FEATURES OF THE FOREGOING), LABS, DTS SERVICES, OR ANY OTHER INFORMATION OR MATERIALS THAT YOU RECEIVE HEREUNDER AS AN OrcaBPO DEVELOPER (COLLECTIVELY, THE “SERVICE” FOR PURPOSES OF THIS SECTION 13 AND 14) WILL BE ACCURATE, RELIABLE, TIMELY, SECURE, ERROR- FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED. THE SERVICE IS PROVIDED ON AN “AS-IS” AND “ASAVAILABLE” BASIS AND THE SERVICE IS SUBJECT TO CHANGE WITHOUT NOTICE. OrcaBPO CANNOT ENSURE THAT ANY CONTENT (INCLUDING FILES, INFORMATION OR OTHER DATA) YOU ACCESS OR DOWNLOAD FROM THE SERVICE WILL BE FREE OF VIRUSES, CONTAMINATION OR DESTRUCTIVE FEATURES. FURTHER, OrcaBPO DOES NOT GUARANTEE ANY RESULTS OR IDENTIFICATION OR CORRECTION OF PROBLEMS AS PART OF THE SERVICE AND OrcaBPO DISCLAIMS ANY LIABILITY RELATED THERETO. OrcaBPO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON- INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OrcaBPO DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SERVICE. YOU ASSUME TOTAL RESPONSIBILITY AND ALL RISKS FOR YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, AND ANY INFORMATION OBTAINED THEREON. YOUR SOLE REMEDY AGAINST OrcaBPO FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES. TO THE EXTENT THAT OrcaBPO MAKES ANY PRE-RELEASE SOFTWARE, HARDWARE OR OTHER PRODUCTS, SERVICES OR INFORMATION RELATED THERETO AVAILABLE TO YOU AS AN OrcaBPO DEVELOPER, YOU UNDERSTAND THAT OrcaBPO IS UNDER NO OBLIGATION TO PROVIDE UPDATES, ENHANCEMENTS, OR CORRECTIONS, OR TO NOTIFY YOU OF ANY PRODUCT OR SERVICES CHANGES THAT OrcaBPO MAY MAKE, OR TO PUBLICLY ANNOUNCE OR INTRODUCE THE PRODUCT(S) OR SERVICE AT ANY TIME IN THE FUTURE.
Disclaimer of Liability: TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL OrcaBPO BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM DELAY OF DELIVERY, FOR LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, FOR BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF OrcaBPO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL OrcaBPO’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).
Third-Party Notices and Products: Third-party software provided by OrcaBPO to you as an OrcaBPO Developer may be accompanied by its own licensing terms, in which case such licensing terms will govern your use of that particular third-party software. Mention of third-parties and third- party products in any materials, documentation, advertising, or promotions provided to you as an OrcaBPO Developer is for informational purposes only and constitutes neither an endorsement nor a recommendation. All thirdparty product specifications and descriptions are supplied by the respective vendor or supplier, and OrcaBPO shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.
Export Control:
A. You may not use or otherwise export or re-export any OrcaBPO Confidential Information received from OrcaBPO except as authorized by United States law and the laws of the jurisdiction in which the OrcaBPO Confidential Information was obtained. In particular, but without limitation, the OrcaBPO Confidential Information may not be exported or re-exported
(a) Into any U.S. embargoed countries or regions or
(b) To anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or any other restricted party lists without required approvals from applicable authorities. By becoming an OrcaBPO Developer or using any OrcaBPO Confidential Information, you represent and warrant that you are not located in any such country and region or on any such list. You also agree that you will not use any OrcaBPO Confidential Information for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons or any other military end uses.
B. You represent and warrant that you and Your representatives (including any beneficiaries, owners, affiliated and/or associated parties) are not:
(a) On any sanctions lists,
(b) Doing business in any of the U.S. embargoed countries, or
(c) A military end user as defined in 15 C.F.R. § 744.
Governing Law: This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law provisions. The parties further submit to and waive any objections to personal jurisdiction of and venue in any of the following forums: U.S. District Court for the Northern District of California, California Superior Court for Santa Clara County, Santa Clara County Municipal Court, or any other forum in Santa Clara County, for any disputes arising out of this Agreement.
Government End Users: Certain OrcaBPO Confidential Information may be considered “Commercial Items”, as that term is defined at ……………, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in ……………………, as applicable. Consistent with ………………………., as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users
(a) Only as Commercial Items and
(b) With only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Miscellaneous: No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of OrcaBPO, and no single waiver will constitute a continuing or subsequent waiver. This Agreement will bind your successors but may not be assigned, in whole or part, by you without the written approval of an authorized representative of OrcaBPO. Any non-conforming assignment shall be null and void. If any provision is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous understandings regarding such subject matter. No addition to or removal or modification of any of the provisions of this Agreement will be binding upon OrcaBPO unless made in writing and signed by an authorized representative of OrcaBPO. The parties hereto confirm that they have requested that this Agreement and all attachments and related documents be drafted in English.