Terms of Service

OrderPort Terms of Service

Effective March 30, 2026

These OrderPort Terms and Conditions and the exhibits attached hereto (“General Terms”), apply to, and are incorporated into, any order form (each, an “Order Form”) between OrderPort, LLC, a Washington company (“OrderPort”), and the other legal entity that executes, or otherwise agrees to be bound by, such Order Form (“Customer”). These General Terms, together with the Order Form (collectively, the “Agreement”), constitute a binding agreement between OrderPort and Customer, under which OrderPort provides Customer access to the Services (as defined in the Order Form). Customer accepts, and agrees to be bound by, the Agreement either by executing, or otherwise agreeing to be bound by, an Order Form or by using the Services. OrderPort and Customer are collectively referred to as, the “Parties”.

Definitions. Unless otherwise defined in the Agreement, capitalized terms have the following meaning:
1. “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party. For this definition, “control” means direct or indirect ownership of more than 50% of the voting interests of the subject entity.
2. “Applicable Laws” means all applicable local, state, provincial, federal, and international laws and regulations.
3. “Authorized User” means any Representative or other person or entity acting on Customer’s behalf who is authorized by Customer to use the Services and who has been supplied with access to the Services either by Customer or by OrderPort at Customer’s written request.
4. “Customer Data” means any information, including Personal Information, uploaded, provided, or made accessible to OrderPort by Customer or Authorized Users to use the Services. For clarity, Customer Data does not include Aggregate Data or usage date collected by OrderPort regarding usage of the Services by Customer and/or Authorized Users.
5. “Documentation” means OrderPort’s user guides, training manuals, instructions, usage information, and other similar documentation, as updated or revised by OrderPort from time to time, that OrderPort provides to Customer (i) within the Service or (ii) at a website that OrderPort may designate from time to time.
6. “Intellectual Property” means all trade secrets, work of authorship, know-how, patents and patent applications, trademarks and service marks (whether registered or unregistered and including any goodwill acquired in such marks), trade names, trade dress, copyrights, moral rights, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.
7. “OrderPort Property” means OrderPort’s Confidential Information, OrderPort’s products, OrderPort’s Services, OrderPort’s Documentation, and all OrderPort Technology, platforms, methodologies, processes, techniques, ideas, concepts, inventions, designs, tools, trade secrets, and know-how, and any modifications, improvements, or derivative works of the foregoing.
8. “OrderPort Technology” means the technology and Intellectual Property used in providing the products and services offered by OrderPort, including computer software programs, websites, networks, and equipment. OrderPort Technology does not include Third-Party Applications.
9. “Personal Information” means any information that relates to an identified or identifiable natural person or that reasonably could be used to identify that person, or other data or information defined as personal information under Applicable Laws.
10. “Representative” means a director, officer, employee, consultant, advisor, representative, or agent of the subject party.
11. “Service(s)” means the OrderPort Winery Software and any other OrderPort service offering(s) specified in the applicable Order Form.
12. “Third-Party Applications” means computer software programs and other technology that are provided or made available to Customer by third parties.
The Services.
1. Use of the Services. OrderPort shall provide Customer with the Services, as listed in the Order Form(s). OrderPort shall perform the Services in a prompt, competent, and lawful manner. All fees applicable to OrderPort’s performance of the Services are described in the applicable Order Form. OrderPort hereby grants Customer a limited, revocable, nonexclusive, nontransferable, worldwide right to access and use the Services during the Term, solely for Customer’s internal business operations. OrderPort reserves all other rights. Customer shall not use any OrderPort services that are not set forth in an Order Form, except as otherwise provided in the Agreement.
2. Customer’s Account. OrderPort shall enable an account for Customer to access the Service(s) (“Account”). Customer shall designate a specific person or persons authorized by Customer to manage and support the Account, including the creation of usernames and passwords for Authorized Users. Customer is solely responsible for maintaining the status of its Authorized Users. Customer and its Authorized Users shall maintain the confidentiality of all usernames, passwords, access, and Account information under their control. Except to the extent caused by OrderPort’s breach of the Agreement, including its obligations under Section 8 (Confidential Information), OrderPort is not responsible for unauthorized access to the Account. Customer shall contact OrderPort promptly if (i) Customer reasonably believes that the Account has been compromised, including any loss, theft, or unauthorized access, use, or disclosure of Account information or (ii) Customer becomes aware of any other breach of security in relation to Customer’s Account information or the Services that may have occurred or is reasonably likely to occur.
3. OrderPort’s Responsibilities. OrderPort shall (i) use commercially reasonable efforts to make the Services available in accordance with the terms of Exhibit A, except for: (1) planned downtime (scheduled with reasonable prior notice, with a goal to provide at least seven (7) calendar days’ notice and at a time intended to minimize impact to OrderPort’s customers) and (2) any unavailability caused by circumstances beyond OrderPort’s reasonable control, including internet service provider, payment processor, or other third-party vendor failures, or delays or denial of service attacks against which OrderPort maintains commercially reasonable prevention controls; and (ii) conduct its business in compliance with Applicable Laws.
4. Customer’s Responsibilities. Customer (i) shall ensure the accuracy and completeness of Customer’s initial and ongoing configuration and setup of the Services; (ii) shall ensure that the Services are compatible with Customer’s business and systems requirements; (iii) shall ensure the accuracy, quality, legality, completeness, and integrity of the Customer Data provided by Customer and the means by which Customer acquired it; (iv) shall ensure the information Customer provides in connection with the Services, such as billing information, is current, accurate, and complete; and (v) is responsible for the provision, maintenance, and use of Customer’s hardware, network, internet connectivity, and software. Customer shall comply with all Applicable Laws. Customer shall ensure that the Authorized Users and Representatives of Customer (and, if Customer enables its Affiliates to use the Services, its Affiliates, their Authorized Users, and their Representatives) comply with all of Customer’s obligations under the Agreement, and Customer shall be responsible for their acts and omissions relating to the Agreement as though they were those of Customer.
5. Customer Affiliates. Customer may enable its Affiliates to use the Services. Unless OrderPort accepts an Order Form from an Affiliate or otherwise agrees in writing, (i) all use of the Services by Customer’s Affiliates will be under Customer’s Account, (ii) OrderPort will invoice Customer and not its Affiliates for the Services, and (iii) Customer shall pay all invoices to OrderPort. When an Affiliate of Customer uses the Services, all references to “Customer” in the Agreement relating to access or use of, or restrictions or limitations on access or use of, the Services refer to the Affiliate. Among Customer and its Affiliates, only an entity specified on an Order Form may (i) take any action to enforce such entity’s rights and obligations arising from the Agreement, or (ii) request technical support for such entity with respect to the Services.
6. OrderPort Affiliates. OrderPort may perform the Services itself, through any of its Affiliates, or a third-party representative. When an Affiliate of OrderPort provides the Services, all applicable references to “OrderPort” in the Agreement relating to provision of the Services refer to such Affiliate. Unless Customer enters into an agreement directly with the third-party representative, OrderPort is responsible for its Affiliate’s or third-party representative’s compliance with the terms of the Agreement, and OrderPort shall be responsible for their acts and omissions relating to the Agreement as though they were those of OrderPort. OrderPort or its Affiliate may invoice Customer for the Services, and Customer shall pay all invoices to the OrderPort Affiliate that issued the invoice. Customer and its Affiliates shall bring any claims it or they may have solely against OrderPort and not against any OrderPort Affiliate or third-party representative providing or invoicing for the Services.
7. Subcontractors. OrderPort may use subcontractors to facilitate its obligations under the Agreement, and OrderPort shall be responsible for the acts and omissions of such subcontractors relating to the Agreement as though they were those of OrderPort.
8. Restrictions. Customer shall use the Services only as set forth in the Agreement and the Documentation, and not for the benefit of any third party or in connection with any third-party services not expressly authorized by OrderPort. Customer shall not (i) reverse assemble, reverse engineer, decompile, or attempt to derive source code from OrderPort’s Services, content, or OrderPort Technology; (ii) reproduce, modify, create, or prepare derivative works of OrderPort’s Services, content, OrderPort Technology, or Documentation; (iii) distribute or display OrderPort’s Services, content, OrderPort Technology, or Documentation other than to Authorized Users; (iv) share, sell, rent, lease, or otherwise distribute access to OrderPort’s services (except with respect to Customer’s Affiliates as expressly provided in Section 2(e)) or use OrderPort’s Services to operate any timesharing, merchant of record, service bureau, or similar business; (v) alter, destroy, or otherwise remove any proprietary notices within the Services, OrderPort Technology, or Documentation; or (vi) disclose the results of any benchmark tests to any third parties without OrderPort’s prior written consent.
Proprietary Rights.
1. OrderPort’s Intellectual Property. OrderPort and OrderPort’s licensors have and will retain sole and exclusive right, title, and interest in OrderPort Property, and all enhancements or improvements to, or derivative works of, the foregoing, including any Intellectual Property rights therein. Nothing in the Agreement transfers or conveys to Customer any ownership interest in OrderPort’s Intellectual Property.
2. Suggestions. If Customer provides OrderPort with any suggested improvements to the Services, Customer hereby grants OrderPort a nonexclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license to, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of, such suggested improvements. Notwithstanding the foregoing, nothing in this Section 3(b) (Suggestions) grants OrderPort a license to use any methodologies, processes, techniques, ideas, concepts, designs, tools, or know-how covered by a registered patent owned by Customer, other than solely as necessary for performance of Services.
3. Customer’s Intellectual Property. Customer has and will retain sole and exclusive right, title, and interest in Customer Data and Customer’s Confidential Information, including any Intellectual Property rights therein. Nothing in the Agreement transfers or conveys to OrderPort any ownership interest in or to the Customer Data or Customer’s Confidential Information, provided that OrderPort has the right to create Aggregate Data (as defined in Section 4(b) (Aggregate Data)) and owns all right, title, and interest in Aggregate Data both during and after the term of the Agreement. Customer shall ensure that it has all necessary rights and permissions required by Applicable Laws to use and permit the use of Customer Data in accordance with the Agreement.
Privacy and Security.
1. Use of Customer Data. OrderPort may retain, use, and disclose Customer Data solely (i) to provide the Services; (ii) to provide customer support; and (iii) to comply with Applicable Laws. Customer Data and Customer’s Confidential Information do not include Personal Information relating to an employee or other authorized Representative of Customer that is collected or received by OrderPort in connection with the procurement or use of, or payment for, the Services (for example, the names and email addresses of Customer’s account representatives and accounting personnel). OrderPort’s Privacy Policy (available at https://orderport.net/privacy-policy), describes OrderPort’s practices related to use of any Personal Information by OrderPort in connection with the Services. Each Party shall be responsible for informing its own Representatives of the processing of their Personal Information as provided in the Agreement.
2. Aggregate Data. OrderPort may create, generate, and use Aggregate Data for any lawful purpose. “Aggregate Data” means de-identified and anonymized sets of data derived from the data of multiple OrderPort customers (including Customer Data) for the purpose of expressing that information in summary form. Aggregate Data does not include any Personal Information relating to Customer, Authorized Users, Customer’s clients or customers, or other information that could reasonably identify a natural person, Customer, or Customer’s clients or customers. OrderPort will not re-identify and de-anonymize any Aggregate Data.
3. Protection of Customer Data, Personal Information, and Confidential Information. Each Party is responsible for complying with Applicable Laws, including applicable data protection legal requirements, for the purposes of the Agreement. OrderPort shall implement and maintain commercially reasonable technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access, or disclosure of Customer Data, Confidential Information, or Personal Information. OrderPort may occasionally update, upgrade, change, or add safeguards and security methods as warranted in OrderPort’s sole discretion, and OrderPort will provide notice if Customer needs to take action to facilitate continued interaction with the Services. OrderPort shall implement processes and maintain procedures designed to comply with Applicable Laws and shall facilitate Customer’s compliance with its obligations for data security and response to individual data subject requests with respect to Personal Information in OrderPort’s possession or control, to the extent that Customer is required to comply with any existing or newly enacted Applicable Laws regarding privacy including, for example, the General Data Protection Regulation (GDPR) or the California Consumer Privacy Act (CCPA); and any amendments and successors to the foregoing. The Agreement and the Documentation are Customer’s instructions for processing Customer Data, and OrderPort shall not process Customer Data for any other purpose. OrderPort shall use commercially reasonable measures to ensure that any OrderPort subcontractors implement and comply with reasonable security measures in handling any Customer Data, Personal Information, or Customer’s Confidential Information.
4. Notices. OrderPort shall notify Customer without undue delay in accordance with Applicable Laws of unauthorized access, use, or disclosure of any Customer Data or Customer’s Confidential Information under OrderPort’s control. OrderPort shall provide Customer with information regarding such incident as required by Applicable Laws or as reasonably requested by Customer to enable Customer to comply with its obligations under Applicable Laws. OrderPort shall use commercially reasonable efforts to: (i) identify the cause of the incident and (ii) remediate the cause of the incident within OrderPort’s systems, to the extent such remediation is within OrderPort’s reasonable control.
Service Suspension and Disputes.
1. Generally. As reasonably practicable under the circumstances, OrderPort shall endeavor to resolve together with Customer any circumstance that may give rise to OrderPort’s suspension rights, which include, for example, the following: (i) a material risk caused by Customer, its Affiliates, or its or their Authorized Users or Representatives to the security or performance of the Services, the network, Customer, or any other OrderPort customer or business partner; (ii) use of the Services in violation of the Agreement; or (iii) Customer is delinquent in its payment obligations for any undisputed amounts. In the case of payment delinquency, OrderPort shall notify Customer (including by phone or email to Customer’s business contact) at least ten (10) calendar days before suspension. For any other suspension, OrderPort shall make a good faith effort to contact and provide notice to Customer (including by phone or email to Customer’s business contact) in advance. Payment of undisputed amounts will be considered delinquent if not received within fifteen (15) calendar days following the due date set forth on an invoice. OrderPort acknowledges that suspending Customer’s right to access or use the Services is a significant action, and therefore OrderPort shall not exercise this remedy except in good faith and as necessary to resolve the issue giving rise to OrderPort’s right to suspend the Services. OrderPort shall not destroy or overwrite any Customer Data during the suspension period.
2. Effect of Suspension. If OrderPort suspends Customer’s ability to access the Services, (i) Customer remains responsible for all fees and charges for suspended Services and for other Services to which Customer continues to have access, if any; and (ii) Customer will not be entitled to any compensation or credits for any period of suspension, unless suspension was due to OrderPort’s error or omission.
3. Payment Disputes. Customer must assert any payment dispute in writing to OrderPort within fifteen (15) calendar days after the due date of the invoice giving rise to the dispute. OrderPort shall not exercise its suspension or termination rights or apply interest on late payments if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
Term and Termination.
1. General.
  1. Agreement Term. The term of the Agreement (the “Term”) begins on the Order Date (as defined in the Order Form) and ends on the date of termination or expiration of all applicable Order Forms.
  2. Subscription to Upgraded or Additional Services. If Customer upgrades any of Customer’s Services during the Term, then the term for the upgraded Service will be coterminous with the current Term. In the event of any upgrade, OrderPort will charge Customer’s payment information on file, unless another payment method is agreed, for the then-current applicable upgrade fee plus an amount equal to the difference between the then-current Service fee and the upgraded Service fee.
2. Termination. Either Party may terminate the Agreement or any affected Service by notice to the other Party (i) if the other Party materially breaches its obligations under the Agreement and, if the breach is capable of cure, fails to cure the breach within thirty (30) calendar days of the date of written notice of breach; or (ii) upon the other Party ceasing to operate in the ordinary course, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within sixty (60) calendar days of filing. Material breach by Customer includes the following by way of example and not limitation: (1) Customer is unable to resolve any material issue leading to suspension of Customer’s Services as a result of the acts or omissions of Customer, its Affiliates, or its or their Authorized Users or Representatives within thirty (30) calendar days following notice of suspension; (2) Customer’s use of the Services in violation of Applicable Laws; or (3) adverse Customer due diligence. Either Party may also terminate the Agreement for convenience upon sixty (60) days’ prior written notice to the other Party.
3. Consequences of Termination for Breach. If Customer terminates the Agreement or any Service as a result of OrderPort’s material breach, then OrderPort shall refund Customer the pro rata amount of any prepaid Service fees applicable to the unused portion of the Term of the terminated Service (excluding any activation or other one-time fees); provided, however, that if Customer was unable to use the Service as a result of OrderPort’s material breach, the unused portion of the Term will be measured from the last date on which Customer was able to use the Service (or the date of Customer’s written notice of breach, if later). If OrderPort terminates the Agreement or any Service due to Customer’s material breach, OrderPort shall not refund any amounts to Customer.
4. General Effects of Termination. Upon any termination of the Agreement: (i) all of Customer’s rights under the Agreement immediately terminate (with the exception of those surviving termination, as described below); (ii) except as set forth in Section 6(c) (Consequences of Termination for Breach), Customer remains liable for all fees, charges, expenses, and any other obligations Customer has incurred during the Term; and (iii) OrderPort shall destroy or overwrite Customer Data and Customer’s Confidential Information as provided in Section 6(f) (Deletion of Data). All provisions that by their nature should survive termination of this Agreement will do so (including, by way of example and not limitation, payment obligations, indemnification and defense obligations, and duties of confidentiality).
5. Return of Customer Data. Upon receipt of a request to return Customer Data at any time up to thirty (30) calendar days after termination of the Agreement or the applicable Service, OrderPort shall either (i) provide Customer with limited access to the Service, at no additional cost and subject to the obligations and restrictions of these General Terms, solely for the purpose of retrieving Customer Data; or (ii) provide an export file of Customer Data stored on OrderPort’s systems in a commonly used format reasonably determined by OrderPort and subject to OrderPort’s standard fees for such export. OrderPort may, but has no obligation to, maintain or return Customer Data more than thirty (30) calendar days after termination of the Agreement.
6. Deletion of Data.
  1. At Customer’s Request. Upon Customer’s request at any time during the Term for a Service or up to sixty (60) calendar days after termination of the Agreement, OrderPort shall promptly destroy or overwrite Customer Data for such Service or Customer’s Confidential Information, other than Customer Data or Customer Confidential Information or Personal Information contained in automatic computer backups or historical archives or that must be retained to fulfill obligations under the Agreement for regulatory, legal, or audit purposes, or for compliance with OrderPort’s data retention policies. If Customer requests OrderPort permanently destroy or overwrite Customer Data, Customer releases OrderPort from any claims or liability relating to that Customer Data, including, without limitation, any guarantee, warranty, or indemnification.
  2. Upon Termination. If Customer does not request deletion of its Customer Data or Customer’s Confidential Information, OrderPort will destroy or overwrite such data and information in accordance with OrderPort’s document retention policies and standard backup and archival procedures, after the data or information is no longer reasonably necessary to fulfill obligations under the Agreement or for regulatory, legal, or audit compliance.
Fees and Taxes.
1. Fees. Customer shall pay all fees specified in each Order Form and any other applicable expenses. Customer will be invoiced based on the Order Form, including, if applicable, for usage-based fees. Except as otherwise specified in the Agreement: (i) amounts are quoted and payable in the currency specified on the Order Form; and (ii) payment obligations are non-cancelable and fees and expenses paid are non-refundable. Unless otherwise agreed in writing, OrderPort will automatically charge Customer’s payment information on file for any undisputed invoices which are past due, renewals, upgrades, overage fees (if applicable), and additional Services purchased.
2. Subscription Plans. Customer’s subscription plans for the Services are specified in the applicable Order Form. Customer may not reduce Customer’s commitment under the Service subscription plan specified in the Order Form during the Term. Customer is not entitled to any refund of fees paid or relief from fees due if the volume of Service that Customer actually uses is less than the volume Customer ordered.
3. Taxes. Customer is responsible for any applicable sales, use, excise, value-added, or similar taxes, levies, or duties payable with respect to Customer’s order of Services assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in any Order Form, all fees, rates, and estimates exclude such taxes, levies, and duties. OrderPort is responsible only for taxes based upon OrderPort’s net income, assets, payroll, property, and employees.
4. Fee Increases. Unless otherwise agreed in writing, OrderPort may increase Service fees during the Term. In order for price increases to be effective, OrderPort must notify Customer at least thirty (30) calendar days in advance. Such notice may be in the form of an invoice or any other form of notice used by OrderPort to communicate with Customer. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or any additional Service that Customer orders; (ii) overage fees for usage in excess of Customer’s usage tier; and (iii) expiration of any credit, discount or incentive programs to which Customer was previously entitled.
Confidential Information.
1. Confidential Information. “Confidential Information” means information designated by a Party or a Party’s Affiliate as confidential, or given the circumstances, would reasonably be understood by the Recipient to be confidential, and that is disclosed by a Party, its Affiliates, or their respective Representatives (the “Discloser”) to the other Party, its Affiliates, or their respective Representatives (the “Recipient”), regardless of the form of disclosure. Confidential Information includes, with respect to OrderPort and its Affiliates, the OrderPort Property including non-public Documentation, and with respect to Customer and its Affiliates, all Customer Data, and with respect to both the Discloser and Recipient, the non-public terms of the Agreement and all non-public information relating to business plans, customers and customer lists, data, designs (whether actual, contemplated, experimental, or planned), financial information, forecasts, inventions, know-how, methods, market analysis, pricing, products (whether actual, contemplated, experimental, or planned), prerelease offerings, research and development, security policies and processes, source and object code, and strategies of the Discloser.
2. Exclusions. Confidential Information does not include information that the Recipient can establish: (i) (except with respect to Personal Information) is or becomes generally known to the public without the Recipient’s breach of any obligation owed to the Discloser; (ii) has been rightfully received by the Recipient from a third party without confidentiality restrictions; (iii) is known to the Recipient without any restriction as to use or disclosure prior to first receipt by the Recipient from the Discloser; or (iv) has been independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.
3. Disclosures Required by Law. If any Applicable Laws or judicial or administrative order requires the Recipient to disclose any of the Discloser’s Confidential Information, the Recipient shall (if legally permitted) promptly notify the Discloser in writing prior to making any such disclosure, in order to facilitate the Discloser’s efforts to protect its Confidential Information. Following such notification, the Recipient shall cooperate with the Discloser, at the Discloser’s reasonable expense, in seeking and obtaining protection for the Discloser’s Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Discloser, the Recipient is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency, or similar entity, the Recipient may disclose only that portion of the Confidential Information that is legally required to be disclosed, and the Recipient shall exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
4. Restrictions on Use and Disclosure. The Recipient shall use Confidential Information of the Discloser solely to fulfill its obligations under the Agreement, to comply with Applicable Laws, to discuss potential business opportunities between the Parties, or as otherwise permitted under the Agreement. Subject to the permitted disclosures set forth in Section 8(c) (Disclosures Required by Law), the Recipient shall hold Confidential Information in strict confidence and shall not disclose or authorize the disclosure of Confidential Information to third parties except as otherwise permitted by the Agreement. The Recipient may disclose Confidential Information to a Representative or service provider on the condition that the Recipient: (i) ensures that such Representative or service provider is bound by a written agreement or other legally binding obligation of confidentiality and restricted use at least as protective as these Terms and (ii) is fully responsible for such Representative’s or service provider’s use and disclosure of the Confidential Information and its compliance with the obligations of the Recipient under this Section 8(d) (Restrictions on Use and Disclosure). The Recipient shall protect Confidential Information of the Discloser from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information of a similar nature and shall not reverse engineer, decompile, or disassemble any such Confidential Information. All rights and obligations regarding Confidential Information (including Customer Data) will survive and remain subject to the confidentiality provisions of this Agreement for as long as the Confidential Information is retained or until it no longer meets the definition of Confidential Information.
5. Return of Confidential Information. OrderPort shall destroy, overwrite, or return Customer’s Confidential Information as provided in Section 6(e) (Return of Customer Data) or Section 6(f) (Deletion of Data), as applicable.
Warranties.
1. Mutual Warranties. Each Party represents and warrants to the other Party that (i) it has the authority to enter into and perform its obligations under the Agreement; (ii) the Agreement does not conflict with any other agreement entered into by it; (iii) it does not conduct business for any unlawful purpose; and (iv) it and its Representatives are not on and have not been on the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated National and Blocked Persons; Her Majesty’s Treasury, Asset Freezing Unit’s Consolidated List of Financial Sanctions Targets; the European Union’s consolidated list of persons, groups, and entities subject to EU financial sanctions; or any similar list of embargoed or blocked persons applicable to persons or entities in the jurisdiction of such Party’s domicile or use of the Services.
2. OrderPort’s Warranties. OrderPort offers the following warranties for the Services:
  1. General.
    1. OrderPort warrants to Customer that: (1) the Services OrderPort provides to Customer will perform in all material respects in accordance with its applicable, then-current Documentation; (2) subject to Section 4(c), OrderPort will not materially reduce a Service or its features or functionality during the Term (provided, however, that OrderPort may do so to comply with Applicable Laws); and (3) OrderPort will use commercially reasonable efforts, using then-current versions of commercially available antivirus software, to ensure that the OrderPort Technology provided to Customer contains no computer virus, Trojan horse, worm, or other similar malicious code. OrderPort does not warrant that the OrderPort Technology is free from all bugs, errors, or omissions.
    2. If OrderPort fails to conform to any of the warranties in this Section 9(b)(i) (General) and OrderPort does not render the OrderPort Technology conforming within thirty (30) calendar days of Customer’s written notice to OrderPort of the nonconformance, then, as Customer’s sole and exclusive remedy for any nonconformance, Customer may immediately terminate its subscription for the affected Service upon notice to OrderPort, and OrderPort shall refund Customer the pro rata amount of any prepaid Service fees applicable to the unused portion of the Term of the terminated Service (excluding any activation or other one-time fees). The refund will be calculated from the date that Customer notifies OrderPort of the nonconformance.
    3. To the extent the Service, systems, or software have been modified, except where such modifications have been made at the direction of OrderPort, the following shall not apply: (i) the warranty obligations contained in this Section 9(b)(i) (General), and (ii) the support obligations contained in Section 2(c) (OrderPort’s Responsibilities).
  2. The warranties in the Agreement are for Customer’s sole benefit, and do not extend to any other person or entity.
3. Disclaimer of Implied Warranties. Except as expressly provided in the Agreement, the Services are provided on an “as-is” and “as available” basis, and neither Party makes any warranties of any kind, whether express, implied, statutory, or otherwise, and each Party specifically disclaims all implied warranties, including the implied warranties of merchantability and fitness for a particular purpose, to the maximum extent permitted by Applicable Laws.
Indemnification.
1. Indemnification by OrderPort. OrderPort shall indemnify and defend Customer and Customer’s directors, officers, employees, and Affiliates against any Losses incurred as a result of a third-party demand, claim, or action that: (1) the use of the Service in accordance with the Agreement infringes a copyright, registered trademark, issued patent, or other Intellectual Property right of such third party (an “Infringement”); (2) results from OrderPort’s breach of its confidentiality obligations under Section 8 of the Agreement; or (3) results from OrderPort’s violation of Applicable Laws. “Loss” means any liability, loss, settlement payment (including any settlement the Indemnitee agrees to pay, as long as it is in a written settlement approved by the Indemnitor in writing), interest, award, judgment, damages (including punitive damages), fines, fees, penalties, filing fees and court costs, witness fees, reasonable attorneys’ and other professionals’ fees, other reasonable investigation and defense costs, and any other fees, costs, expenses and charges.
  1. If the Service is subject to a claim of Infringement and as a result, Customer’s use of the Service is enjoined, then OrderPort shall, at no cost to Customer, procure for Customer the right to continue using the Service or replace it with non-infringing or modified Services of materially equivalent functionality.
  2. If none of the above options are available on terms that are commercially reasonable for OrderPort, then OrderPort may terminate Customer’s right to access and use the Services that require the infringing Service, in which case OrderPort shall refund Customer the pro rata amount of any prepaid Service fees applicable to the unused portion of the Term for the terminated Service(s) (excluding any activation or other one-time fees) provided, however, that if Customer was unable to use the Service as a result of the Infringement, the unused portion of the Term will be measured from the last date on which Customer was able to use the Service.
  3. OrderPort has no obligation with respect to any actual or alleged Infringement to the extent that the Infringement is caused or alleged to be caused by (1) Customer Data; (2) use or modification of the Services other than by OrderPort or other than as specified in the Documentation or the Agreement; or (3) combination of the Service with any products, software, services, data, or other materials not provided by OrderPort or approved by OrderPort in writing, if the Infringement would not have occurred but for such combination.
2. Indemnification by Customer. Customer shall indemnify and defend OrderPort and its Affiliates and their respective directors, officers, and employees against Losses incurred as a result of a third-party demand, claim, or action that (1) Customer’s use of the Service in breach of the Agreement infringes the Intellectual Property rights of a third party; (2) results from Customer’s breach of its obligations under the Agreement; or (3) results from Customer’s violation of Applicable Laws.
3. Process. The obligations of a Party (“Indemnitor”) to defend or indemnify the other (“Indemnitee”) under this Section 10 (Indemnification) are subject to the following: (i) the Indemnitee must promptly inform the Indemnitor in writing of any claim or action within the scope of the Indemnitor’s defense or indemnity obligations set forth in the Agreement, provided that Indemnitor shall not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that the Indemnitor is prejudiced by any such failure to provide prompt notice; (ii) the Indemnitor must be given exclusive control of the defense of such claim and all negotiations relating to its settlement, except that the Indemnitor may not, without Indemnitee’s approval, (A) make any admissions on the Indemnitee’s behalf or (B) settle any such claim unless the settlement unconditionally releases the Indemnitee of all liability; and (iii) the Indemnitee must reasonably assist the Indemnitor in all necessary respects in connection with the defense of the claim, at the Indemnitor’s expense. The Indemnitee may participate in the defense of the claim at its sole cost and expense.
4. Exclusive Remedy. This Section 10 (Indemnification) states the Indemnitor’s sole liability and the Indemnitee’s exclusive remedy with respect to Infringement and any other type of third-party claim or action described in this Section. This Section does not apply to any direct claims between the Parties.
Modifications.
1. Modification Notice. Subject to the restrictions in this Section 11 (Modifications), OrderPort may modify these General Terms. If OrderPort modifies these General Terms, it shall provide prior written notice (“Modification Notice”) to Customer of such modifications at least thirty (30) calendar days prior to the effectiveness of the modifications. OrderPort is not required to provide prior notice if modifications are necessary to comply with Applicable Laws but in such case shall use commercially reasonable efforts to provide prior notice when practicable. OrderPort may update the list of services in the General Terms without providing prior notice.
2. Mid-Term Modification Notice. If any OrderPort modifications materially and adversely affect Customer, then Customer may terminate Customer’s subscription to the affected Service by providing written notice to OrderPort at any time within the thirty (30) calendar day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (i) the date on which Customer delivers a timely termination notice or (ii) the date on which the applicable modifications become effective, provided that, upon written request by Customer, OrderPort shall continue to provide such Service to Customer as needed to manage a reasonable transition to another vendor, not to exceed sixty (60) calendar days, and at OrderPort’s then-current rates for the affected Service. If Customer terminates a Service pursuant to this Section 11(b) (Mid-Term Modification Notice), then OrderPort shall refund Customer the pro rata amount of any prepaid Service fees applicable to the unused portion of the Term for the terminated Service (excluding any activation or other one-time fees).
3. General. If Customer does not terminate the affected Service subscription as specified in this Section 11 (Modifications), then Customer will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice.
Exclusion of Certain Claims; Limitation of Liability.
1. Exclusion of Certain Claims. In no event shall either Party be liable to the other Party or any other party for cost of cover or any consequential, indirect, special, punitive, incidental, exemplary, or lost profits damages of any kind, whether foreseeable or unforeseeable, including damages for loss of data, goodwill or investments, use of money or facilities, interruption in use or availability of data, stoppage of other work, or impairment of other assets, even if advised of the possibility of such damages and even if such damages are reasonably foreseeable. The previous sentence will not apply to (i) instances of gross negligence or willful misconduct, (ii) a Party’s breach of its privacy, security, and confidentiality obligations set forth in Section 4 (Privacy and Security) and Section 8 (Confidential Information), and (iii) a Party’s indemnification obligations.
2. Limitation of Liability. In no event shall a Party’s aggregate liability to the other Party exceed the fees paid or payable by Customer to OrderPort (but excluding any payment processing fees paid or payable by Customer in connection with the Services) under the Agreement in the six (6) month period immediately preceding the event giving rise to the claim. The previous sentence does not apply to instances of gross negligence or willful misconduct, to Customer’s obligations to pay fees and expenses when due and payable, or to noncompliance with the Agreement by Customer, Customer Affiliates or its or their Authorized Users or Representatives.
3. Limitation of Claims. Except with respect to claims of infringement or misappropriation of Intellectual Property of the other Party, a Party’s breach of its confidentiality obligations set forth in Section 8 (Confidential Information), or Customer’s failure to pay amounts due under the Agreement, neither Party may bring any claim relating to the Agreement more than two (2) years after the Party knew or should have known about the events giving rise to the claim but in no event more than six (6) years after the events giving rise to the claim occurred.
4. General. These exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of such Party, its Affiliates or, in the case of Customer, Authorized Users. Without these limitations, the fees for the Service(s) would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply, and the Parties may have additional rights.
Miscellaneous.
1. Third-Party Applications. OrderPort is not responsible for and does not in any way endorse any Third-Party Applications or websites linked to by OrderPort’s website or the Services.
2. Publicity. Neither Party shall issue any public statement regarding the Agreement without the other Party’s prior written consent. Unless a Party has specifically notified the other Party to the contrary in writing, either Party may use the name or logo of the other Party or its Affiliates to identify such other party as a customer or vendor (as the case may be) in accordance with that Party’s provided marketing guidelines.
3. Other Technology or Services; No Audit Support. Customer acknowledges and agrees that Customer has not relied on any future availability of any service offerings, technology, or additional, enhanced or updated features or functionality, and that the Services do not include any audit support (unless otherwise specified in an Order Form).
4. Governing Law; Jurisdiction and Venue. The Agreement and all matters in connection with the Agreement will be governed by laws of the State of Washington, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. All claims and disputes arising under or relating to this Agreement are to be resolved by binding arbitration in Seattle, Washington. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses and reasonable attorneys’ fees to the prevailing Party. Any such arbitration shall be conducted pursuant to the rules of the American Arbitration Association and by an arbitrator experienced in software-as-a-service and related legal issues and technology and shall include a written record of the arbitration hearing.
5. Equitable Relief. Each Party acknowledges that damages may be an inadequate remedy if it or its Affiliates or its or their Representatives (or, in the case of Customer, Authorized Users) violates the obligations under the Agreement, and each Party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
6. Force Majeure. Neither Party shall be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war. A Party seeking relief from performance under this Section 13(f) (Force Majeure) must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than thirty (30) calendar days, either Party may, in its discretion, terminate the affected Service. Such termination will not result in any liability by either Party, except that, if Customer terminates the affected Service for OrderPort’s failure, OrderPort shall refund Customer the pro rata amount of any prepaid Service fees applicable to the unused portion of the Term of the terminated Service (excluding any activation or other one-time fees). If Customer was unable to use the Service as a result of the force majeure event, the unused portion of the Term will be measured from the last date on which Customer was able to use the Service.
7. Notices. OrderPort shall communicate announcements of general interest by email or by posting on its website or in OrderPort Technology. OrderPort shall provide Customer with legal notices in writing by email, mail, or courier to the address provided by Customer. Customer shall immediately notify OrderPort if Customer’s address for notice changes. Except as otherwise specified in the Agreement, all notices to OrderPort must be in writing and in accordance with the Order Form.
8. Successors and Assigns. Either Party may assign the Agreement without the other Party’s consent to an entity that acquires all or substantially all of the assets of or that is an Affiliate of the assigning Party, provided that (i) the assignee must agree in writing to be bound by the Agreement, and (ii) OrderPort may prohibit assignment by Customer to a competitor of Customer or to an entity operating a business in violation of Applicable Laws. Except as provided above, neither Party may assign its rights or obligations under the Agreement without the other Party’s prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign the Agreement will be null and void. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. For the avoidance of doubt, a change of control or sale of equity interests of a Party shall not be deemed to be an assignment.
9. Severability. If any provision of the Agreement is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the Parties and all other provisions of the Agreement will remain in full force and effect.
10. Waiver. No waiver of any provision of the Agreement, nor any consent by a Party to the breach of or departure from any provision of the Agreement, will in any event be binding on or effective against such Party unless it is in writing and signed by such Party, and then the waiver or consent will be effective only in the specific instance and for the purpose for which given.
11. No Third-Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies to any third party, including clients of Customer.
12. Entire Agreement. The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the Parties with respect thereto. Except as specified in Section 11 (Modifications), the Agreement may not be modified or amended except by a written instrument executed by both Parties. Customer’s standard terms of purchase or vendor management terms (including purchase order terms or click-through terms), if any, are inapplicable.
13. Order of Precedence. Except to the extent expressly specified otherwise, if there is any conflict between these General Terms and any of the other Agreement documents, then the following order of precedence applies: (i) these General Terms, and (ii) the Order Form.
14. Independent Contractor. OrderPort is an independent contractor and not an agent or partner of Customer. Neither Party will be, or be deemed to be, agents, parties to a joint venture or partners of one another. Neither Party will have the right to enter into any contract or commitment in the name of the other party, or to incur any obligation for, create any liability for, or bind the other Party in any respect whatsoever.

EXHIBIT A

OrderPort Network

System Description and Security

OrderPort hosts with Azure, a leading hosting provider, and uses the cloud server hosting service. Cloud hosting provides OrderPort with 99.9% uptime, load balancing, and intrusion detection.

OrderPort manages its own DNS records, servers, database and backup systems.

All data is encrypted and is hosted on high availability redundant servers and then backed up nightly to a secure cloud-hosted environment where it is stored for 24/7 online access by OrderPort.

All OrderPort web sites and collected data reside behind a firewall. The servers each contain virus protection software that is kept current. OrderPort uses SSL for all transactions. SSL encrypts sensitive data before sending it to the credit card processing site for approval. OrderPort does not maintain copies of credit card information.

OrderPort reserves the right to replace its hosting provider while providing the same or better levels of service to the Customer.

Payment Card Industry (PCI) Compliance

OrderPort servers are scanned regularly by MegaplanIT and the results are available in PDF format 24 hours after the scan has been completed.

Data Access

All records of Customer orders processed through the OrderPort platform are available on-demand to Authorized Users using searches of up to 365 days from the date of search. Records of such Customer orders for periods beyond 365 days are available to Customer on-request from backup files.

END OF AGREEMENT