Orbit Analytics End User License Agreement

This Orbit Analytics End User License Agreement (“EULA”) governs End User’s access to and use of Orbit products provided by Orbit Analytics (“Orbit”).

1.License Grant. Orbit hereby grants to End User a subscription-based, non-exclusive, non-transferrable license to the Orbit products for internal purposes. This license includes the right for End Users to use the products and documentation in combination with other systems, equipment, and software.

2. No Implied License. No right or license will be implied other than the rights and licenses expressly granted in this EULA.

3.Retained Ownership. Orbit retains all ownership right, title, and interest in the Orbit products, subject only to the rights and licenses granted herein.

4.Functionality. Orbit warrants that the Orbit products will perform in accordance with the documentation and any specifications provided by Orbit, agreed upon or developed by the parties.

5.DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ORBIT MAKES NO OTHER WARRANTIES RELATING TO THE ORBIT PRODUCTS, EXPRESS OR IMPLIED. ORBIT DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PRODUCTS OR THE MEDIA ON WHICH PRODUCTS ARE SUPPLIED.

6.LIMITATION OF LIABILITY.
ORBIT AND ITS VENDORS AGGREGATE LIABILITY UNDER THIS EULA, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE FEES PAID FOR THE ORIT PRODUCTS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING  RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY EXPRESSELY EXCLUDES ANY VIOLATION OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY OR ITS EMPLOYEES, AGENTS, OR CONTRACTORS.

IN NO EVENT WILL ORBIT AND ITS VENDORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS EULA (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

THE FOREGOING LIMITATIONS SHALL NOT APPLY TO ORBIT’S INDEMNIFICATION OBLIGATIONS.

7. INFRINGEMENT INDEMNIFICATION. Orbit agrees to indemnify, defend and hold harmless End Users from and against all claims, damages, liabilities, judgments, costs, expenses (including legal costs and reasonable attorney fees) (collectively “Damages”) to the extent arising from a third party claim against End User from (a) personal injury or loss or damage to property to the extent resulting from any act or omission of Orbit in connection with Orbit’s performance under this EULA, or (b) that a permitted use of a Orbit product infringes any U.S. patent, copyright, trade secret, or other intellectual property right of a third party.  Orbit will have control of such defense or settlement negotiations and End User agrees to give Orbit prompt notice of any such claim and provides reasonable assistance in its defense. Orbit shall have no obligation to defend or indemnify End User if the claim of infringement arises based solely on the combination of the Orbit products in combination with any other product, software or service not provided by Orbit (unless Orbit has recommended or approved such combination).  If End User’s right to use any of the Orbit products is enjoined, Orbit will, at Orbit’s expense, (a) procure for the End User the right to use the Orbit products, (b) with the reasonable consent of WellSky and End User, replace the Orbit products with a functionally equivalent, non-infringing product or service, or (c) with the reasonable consent of WellSky and End User, modify the applicable Orbit products so they become non-infringing and functionally equivalent to the infringing Orbit products.  If (a), (b), or (c) is not commercially reasonable, Orbit will refund all fees pre-paid but not used in exchange for termination or return of the Orbit products. The foregoing states the entire liability of Orbit with respect to infringement of intellectual property rights.