Terms of Service Software
ORCA TECHNOLOGIES AS, organization number 924 636 750, (“Orca”) has developed and sells navigation devices for recreational boaters.
The display tablet and mobile application are connected to a software and cloud service which allows users to plan, navigate and review their trips on sea, and to synchronize their plans between different devices (such as computers, mobile phones, etc.). In order to use the cloud service, the customer must enter into a subscription agreement which gives the customer access to the cloud service (the “Subscription Agreement”).
Orca’s cloud-based platform “Cloud Service” enables the Customer to utilize marine services such as cartography, routing, (or equivalent service developed by Orca in the future which offers the Customer corresponding features and functions).
References in the Subscription Agreement to “Customer” shall mean the person stated as “user” in the online login portal available at Orca’s website.
The Customer acknowledges having read and understood the Subscription Agreement. The Subscription Agreement constitutes a binding agreement when the Customer has accepted the Subscription Agreement through the ordering process of the Cloud Service, subject to confirmation by Orca as mentioned in clause 1 below.
1. DESCRIPTION OF THE SERVICE
The Cloud Service and other Subscription features are described in further detail on www.getorca.com.
The Customer may order the Cloud Service using the ordering process on Orca’s website. All orders are subject to acceptance by Orca at its discretion.
2. SUBSCRIPTION OPTIONS
A yearly subscription is provided free of charge upon the purchase of the Orca Mobile Kit or the Orca Display Kit for the first 12 months.
Afterward, the Customer has the option to renew it for the next 12 months. The subscription is subject to a rolling subscription fee in addition to the price paid for the Orca device.
3. SUBSCRIPTION LICENSE AND SUBSCRIPTION PERIOD
The Customer is granted a limited, revocable, non-exclusive, and non-transferable right to use the subscription in accordance with the Subscription Agreement during the subscription period.
The Subscription Period starts running from the moment the Customer creates a customer profile on Orca’s website or application.
Unless otherwise specified in the ordering process, the subscription runs until terminated by either party, in accordance with section 4 below.
4. TERMINATION OF THE SUBSCRIPTION AND DUTIES UPON TERMINATION
The Customer may terminate the Subscription Agreement at any time and without cause through the customer profile on Orca’s website or by contacting Orca through this support e-mail.
Orca may not terminate the Subscription Agreement during the 30 day refund period pursuant to the terms and conditions for the purchase of the device, unless; 1) Orca offers another solution with similar capabilities, or 2) the Customer is in material breach of the Subscription Agreement pursuant to clause 9 below.
On the expiry of the refund period, the Subscription Agreement may be terminated by Orca with three month’s prior notice (current + three months), if termination is reasonably necessary to protect Orca’s interests.
Upon termination of the Subscription Agreement, the Customer will lose access to the subscription features, hereunder the Cloud Service. The Customer must ensure to download all data that the Customer wishes to retain from the Cloud Service before the subscription period expires or is terminated.
Orca provides a standard file format for such data export through the Cloud Service. Orca will upon the Customer’s consent keep the data stored in the Cloud Service after the termination of the Subscription Agreement.
5. TECHNICAL REQUIREMENTS
Information about the platform, hardware, and software requirements for the Cloud Service is available here (“Technical Requirements”).
The Technical Requirements may be updated by Orca without prior notice. Orca shall, however, notify the Customer at least 60 days in advance if Orca will stop supporting previously supported Technical Requirements.
Amendments to Technical Requirements shall not affect the Customer’s use of the Cloud Service, but if the Customer fails to meet the Technical Requirements, subsequent updates and extensions to the service may become unavailable to the Customer.
The Customer shall be responsible for obtaining and maintaining all hardware, software, third-party services, and other equipment needed for the access and use of the Cloud Service, and is responsible for all charges and expenses related thereto, including internet access. Orca reserves the right to cancel access to the Cloud Service in the event that the Customer’s failure to maintain and update its own hardware or software should represent a security risk for Orca.
6. SERVICE LEVELS AND PLANNED DOWNTIME
It should be noted that the provisions of this clause 6 apply unless mandatory consumer protection legislation prescribes a better solution for the Customer.
The Cloud Service is provided “as is” and as a standardized service to anyone who has a valid subscription. The Cloud Service shall, however, fulfill the quality and accessibility requirements generally associated with this type of service. A subscription gives the Customer a right to use the Cloud Service as is at all times, and the Customer’s use is not conditional or tied to a specific version or functionality. Orca shall not be responsible for ensuring that the service fits atypical purposes for which the Customer uses the Cloud Service. Orca reserves the right to make improvements, add, modify or remove functionality. Orca may, however, not remove functionality which in Orca view is to be regarded as key features of the subscription.
The Customer acknowledges that the Cloud Service will not always be completely free of errors and that the improvement of the Cloud Service is a continuous process. The Customer is further aware that successful use of the Cloud Service is dependent on equipment and factors that the Customer itself is responsible for (such as adequate internet connection) or which is outside of Orca’s control. Orca is not liable for any discontinuance or disruption of the operation of the Cloud Service caused by a default in any third party service or by the Customer’s own circumstances which is necessary to access the service, including errors in internet connections, browsers, operating systems or other third party software. Third-party software and operating system updates etc. may influence the usability of the Cloud Service, and Orca has no responsibility in this regard. Orca will however always use its best efforts to accommodate and develop the Cloud Service on the basis of updates etc. relating to hardware and software supported by Orca in accordance with the Technical Requirements specified above.
The Customer is responsible for backing up the content in the Cloud Service, and Orca encourages the Customer to do so in order to avoid loss of data. Orca shall under no circumstance be liable to the Customer for loss of data.
7. PERSONAL DATA
Orca will process the personal data which the Customer provides or uploads to the Cloud Service only to the extent necessary to fulfill its obligations pursuant to this Subscription Agreement.
For further information on Orca’s processing of personal data, including information about your rights as registered, please refer to Orca’s Privacy Protection Statement, which is available at https://getorca.com/legal/privacy/.
8. CUSTOMER'S USE OF THE CLOUD SERVICE AND INDEMNITY
The Customer shall not use the Cloud Service in any way which violates any laws, infringes anyone’s rights or damages or interferes with the Cloud Service or any features on the Cloud Service.
The Customer shall ensure that the Customer’s log-in details, passwords, and equivalent obtained by the Customer in conjunction with registration are stored and used in a secure manner and cannot be accessed or used by third parties. The Customer agrees to notify Orca immediately of any unauthorized use of the above information or any other breach of security.
Orca has no obligation to monitor the Customer’s use of the Cloud Service in order to ensure compliance with the terms of this Subscription Agreement or applicable consumer purchasing legislation. However, Orca reserves the right at all times to edit, refuse to post or remove and delete any information or data, in whole or in part, if Orca reasonably suspects that there might be a breach of the Subscription Agreement or applicable consumer legislation.
The Customer owns and is responsible for all data, information, and material of any kind uploaded to the Cloud Service by the Customer, including personal data. Where applicable, the Customer is responsible for obtaining the appropriate authorizations for processing personal data. The Customer is also required to obtain the consent of the people involved where applicable. The Customer is fully responsible for ensuring that the data or information he or she uploads to the Cloud Service can be legally uploaded, that the data is legal, and that the data does not violate third-party rights, such as privacy rights, publishing rights, copyright, contractual rights, intellectual property rights or other rights.
The Customer undertakes to indemnify Orca for any third party claims arising as a result of the Customer’s use of the Cloud Service in breach of the Subscription Agreement.
9. TERMINATION FOR DEFAULT
It should be noted that the provisions of this clause 9 apply unless mandatory consumer protection legislation prescribes a better solution for the Customer. Mandatory consumer protection law complements the provisions of this Subscription Agreement.
Orca may terminate this Subscription Agreement with immediate effect if the Customer is in material breach of any provisions of the Subscription Agreement. A material breach includes but is not limited to (i) use the Cloud Service as part of any crime or illegal behavior (including without limitation all kinds of fraud), (ii) use of the Cloud Service in a manner that may result in losses or the risk of loss for Orca or any third party, (iii) attempts by the Customer to amend the Cloud Service or to use any other software or hardware other than Orca’s Software or hardware linked to the Cloud Service or (iv) payment default lasting more than 20 days, provided Orca has provided the Customer with at least one payment reminder (which may be sent by e-mail).
The Customer shall be entitled to terminate the Subscription Agreement with immediate effect if Orca is in material breach of the Subscription Agreement.
10. LIMITATION OF LIABILITY
It should be noted that the provisions of this clause 10 apply unless mandatory consumer protection legislation prescribes a better solution for the Customer.
Orca shall only be liable for direct loss caused by Orca’s breach of the Subscription Agreement and shall not be liable for indirect loss unless caused intentionally or by gross negligence. For the purposes of this agreement, indirect loss means loss of profits, loss of reputation, loss of data, and other losses which, in accordance with applicable consumer purchasing legislation, are regarded as indirect losses.
However, if the Cloud Service is used for non-consumer purposes, the total liability for Orca, regardless of cause, is capped at the price of the Product.
11. FORCE MAJEURE
Orca shall not be responsible nor liable to the Customer for any failure or delay in performance due to circumstances beyond its reasonable control, including, without limitation, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, service outages resulting from equipment and/or software failure and/or telecommunications failures, power failures, network failures, failures of third party service providers (including providers of internet services and telecommunications). The performance of this agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Agreement.
12. INTELLECTUAL PROPERTY RIGHTS
The Cloud Service and all associated copyrights, know-how, trade secrets, trademarks, and other intellectual property rights belong to Orca and Orca’s suppliers. The Subscription Agreement does not imply any right for the Customer beyond the limited rights of use expressly granted in clause 3 above.
13. USE OF THIRD PARTIES
Orca may use sub-contractors to deliver the Cloud Service, including all support and maintenance services.
Orca reserves the right to amend and change the terms of this Subscription Agreement by giving notice unless the change is due to a legal obligation that implies a notice period.
Notice shall be given by e-mail to the e-mail address provided by the Customer in the order form (or subsequently updated e-mail address) and shall be deemed received by the Customer if the Customer can retrieve the content under normal circumstances.
In the event that Orca amends the Subscription Agreement and that amendment is detrimental to the Customer, the Customer has a right to terminate the Subscription Agreement without penalty.
All notices pursuant to the Subscription Agreement shall be submitted via www.getorca.com. All notices to the Customer shall be sent to the e-mail address provided by the Customer in the order form (or subsequently updated e-mail address).
16. NO RIGHT TO CANCEL
The Cloud Service is classed as digital content pursuant to applicable consumer purchasing legislation and is therefore not subject to cancellation rights. Delivery of the Cloud Service is done without undue delay after the Customer has ordered the service. In the ordering process, the Customer is asked to consent to commencement of delivery, while acknowledging that the right of cancellation has thus been lost.
17. COMPLAINTS AND DISPUTE RESOLUTION
If the Customer has questions relating to the Cloud Service or wishes to make a complaint, Orca may be contacted by via e-mail at Support E-mail.
You may also file your complaint through the European Union Online Dispute Resolution at https://ec.europa.eu/consumers/odr.
If a Customer wants an additional copy of the Subscription Agreement that the customer has accepted, Orca will submit this to the Customer upon request.
This Subscription Agreement shall be governed by and construed in accordance with the laws of Norway. Any disputes shall be referred to and finally resolved by the courts of Norway. The legal venue shall be Oslo City Court. These terms will not limit any consumer protection rights that you may be entitled to under the mandatory laws of your country of residence.
Orca Technologies AS
Tordenskiold gate 3