Terms of service
These Terms of Service constitute an agreement (this “Agreement”) by and between HeyOrca Inc., a Newfoundland and Labrador corporation whose principal place of business is 495 Water Street, St. John's, NL A1E 6B5 Canada (“HeyOrca” or “we” or “us”), and the person or entity (“Customer” or “you”) accessing and using the HeyOrca Platform (as defined below).
BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE HEYORCA PLATFORM, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE USING THE HEYORCA PLATFORM AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE (OR DEEMED ACCEPTANCE THROUGH USE OF THE HEYORCA PLATFORM) BY SUCH AUTHORIZED PERSONNEL.
The “Effective Date” of this Agreement is the date which is the earlier of: (a) Customer’s initial access to the HeyOrca Platform through any online provisioning, registration, or Order process; or (b) the effective date of your first Order (defined below). This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Modifications to this Agreement: From time to time, HeyOrca may modify this Agreement. Unless otherwise specified by HeyOrca, changes become effective for Customer upon renewal of the then-current Term, or entry into a new Order after the updated version of this Agreement goes into effect. HeyOrca will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email, or other means.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “Customer Content” means all content that the Customer provides, transmits, posts or uploads to the HeyOrca Platform for its own purposes and/or on behalf of its end users.
1.2. “Customer Data” means all information collected, processed, and/or stored through the HeyOrca Platform by Customer or on Customer’s behalf.
1.3. “Order” means a customized order for access to the HeyOrca Platform, which is signed by both parties and references these Terms of Service.
1.4. “Privacy/Security Law” means privacy and security laws governing HeyOrca’s handling of Customer Data.
1.5. “HeyOrca Platform” means HeyOrca’s software-as-a-service application identified and described in any Order or Subscription Plan that allows Users to access certain features and functions through a web interface, particularly a social media scheduling platform for collaboration between teams and agencies.
1.6. “Social Media Platforms” means the social networking sites supported by the HeyOrca Platform, including but not limited to Twitter, Facebook, LinkedIn and Instagram.
1.7. “Subscription Plan” means a subscription plan selected by Customer for access to the HeyOrca Platform, which refers to these Terms of Service.
1.8. “Term” is defined in Section 4.1 below.
1.9. “User” means any individual who uses the HeyOrca Platform on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
2. THE HEYORCA PLATFORM.
2.1. Use of the HeyOrca Platform. During the Term, Customer or Users may access and use the HeyOrca Platform pursuant to the terms of the purchased Subscription Plan or Order, including such features and functions as the Subscription Plan or Order requires.
2.2. Support for HeyOrca Platform. HeyOrca will exercise commercially reasonable efforts to (a) provide support for the use of the HeyOrca Platform to Customer, and (b) keep the HeyOrca Platform operational and available to Customer, in each case in accordance with its standard policies and procedures.
2.3. HeyOrca Platform Revisions. HeyOrca may revise HeyOrca Platform’s features and functions at any time, including without limitation by removing such features and functions. If any such revision to the HeyOrca Platform materially reduces features or functionality provided pursuant to a Subscription Plan or Order, Customer may, within 30 days of notice of the revision, terminate such Subscription Plan or Order without cause.
2.4. Interactions with Social Media Platforms. The HeyOrca Platform interacts with various Social Media Platforms and relies on the accessibility and availability of these platforms, along with the features they offer. HeyOrca has no control over such Social Media Platforms and the potential alterations to their features and functions. In the event that a Social Media Platform ceases to provide certain features or functions to HeyOrca, either partially or completely, or if the conditions for access set by HeyOrca (in its discretion), are not met, we may discontinue the provision of said features or functions. Any resultant changes will not hold us accountable to you or any other external parties.
3. SUBSCRIPTION PLANS AND PAYMENTS.
3.1. Subscription Fees. Customer will pay HeyOrca all fees stipulated in the Subscription Plan or Order it purchases (the “Subscription Fees”), with the exception of services accessible free of charge, including free trials.
3.2. Payments. For paid Subscription Plans, HeyOrca will automatically charge your credit card or other payment method based on the frequency of your selected Subscription Plan or Order. HeyOrca will share your account information with financial institutions and payment processing companies, including Stripe, to process your payment.
3.3. Suspension for Non-Payment. HeyOrca reserves the right (in addition to any other rights or remedies HeyOrca may have) to suspend all Customer access to the HeyOrca Platform if any Subscription Fees are overdue, until such amounts are paid in full.
3.4. Taxes. All Subscription Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments, unless expressly stated otherwise. Without limiting the foregoing, Customer is responsible for all taxes of any kind imposed by any governmental authority on any amounts payable by Customer hereunder, other than any taxes imposed on HeyOrca’s income.
4. TERM, MODIFICATION, CANCELLATION AND REFUNDS.
4.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in your Subscription Plan or Order.
4.2. Automatic Renewal. Our Subscription Plans may renew automatically at the end of the Term (which may be monthly or annually, depending on the Subscription Plan you selected), and in this case, we will automatically charge your payment method on the renewal date unless you cancel your Subscription Plan or Order within 30 days of the renewal date. HeyOrca reserves the right to modify the Subscription Fees upon renewal, with prior written notice provided to you at least 30 days before the renewal date.
4.3. Cancellation. You may cancel or downgrade your Subscription Plan at any time by contacting our customer care or account management team with a written notice via email or via our in-app chat. If you cancel or downgrade a paid Subscription Plan before the end of the Term, you must continue to pay the Subscription Fees for the rest of the Term and you will not be entitled to a refund.
4.4. Termination for Cause. Notwithstanding the foregoing, either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
4.5. Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the HeyOrca Platform and delete all copies of the documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 7 (IP & Feedback), 8 (Confidential Information), 9.3 (Warranty Disclaimers), 10(Indemnification), and 11 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
5. CUSTOMER DATA & PRIVACY.
5.1. Privacy Policy. Customer acknowledges HeyOrca’s privacy policy pertaining to the HeyOrca Platform and collection of personal information at https://heyorca.com/about/privacy-policy/, and Customer recognizes and agrees that nothing in this Agreement restricts HeyOrca’s right to alter such privacy policy.
5.2. Risk of Exposure. Although HeyOrca employs reasonable security measures to protect data and personal information uploaded to the HeyOrca Platform, the Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the HeyOrca Platform, Customer assumes such risks. HeyOrca offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
5.3. Data Accuracy. HeyOrca will have no responsibility or liability for the accuracy of data uploaded to the HeyOrca Platform by Customer, including without limitation Customer Data and any other data uploaded by Users.
6. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
6.1. Acceptable Use.
(a) Customer will not:
(i) use the HeyOrca Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the HeyOrca Platform beyond the purposes of this Agreement (including any Subscription Plan or Order);
(ii) provide HeyOrca Platform passwords or other log-in information to any third party;
(iii) share non-public HeyOrca Platform features or content with any third party;
(iv) access the HeyOrca Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the HeyOrca Platform, or to copy any ideas, features, functions or graphics of the HeyOrca Platform; or
(v) engage in web scraping or data scraping on or related to the HeyOrca Platform, including without limitation collection of information through any software that simulates human activity or any bot or web crawler.
(b) In the event that HeyOrca suspects any breach of the requirements of Section 6.1(a), including without limitation by Users, HeyOrca may suspend Customer’s access to the HeyOrca Platform without advance notice, in addition to such other remedies as HeyOrca may have.
6.2. Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the HeyOrca Platform, including without limitation by protecting its passwords and other log-in information. Customer will notify HeyOrca immediately of any known or suspected unauthorized use of the HeyOrca Platform or breach of its security and will use best efforts to stop said breach.
6.3. Compliance with Laws. In its use of the HeyOrca Platform, Customer will comply with all applicable laws, including without limitation Privacy/Security laws.
6.4. Users & HeyOrca Platform Access. Customer is responsible and liable for: (a) Users’ use of the HeyOrca Platform, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; (b) any use of the HeyOrca Platform through Customer’s account, whether authorized or unauthorized; and (c) allowing Customer Data to be processed by the HeyOrca Platform.
6.5. Customer Rights and Consents. Customer represents, warrants and covenants that it has and shall maintain throughout the Term all necessary rights, consents and authorizations to provide the Customer Data to HeyOrca and to authorize HeyOrca to process Customer Data through the HeyOrca Platform as contemplated by this Agreement.
7. FAIR USE POLICY
Fair Use Policy
HeyOrca’s services, including both free and paid plans, are designed to provide valuable features to social media managers, teams, and agencies. We are committed to maintaining a fair, collaborative, and beneficial environment for all users. By using HeyOrca’s services, you agree to comply with this Fair Use Policy.
7.1. Acceptable Use of HeyOrca Plans
Free and Paid Plans: All users are expected to use HeyOrca’s services in a manner consistent with intended use, respecting any outlined limitations for their specific plan tier.
Users should refrain from using their accounts in ways that negatively impact the experience of others, including but not limited to excessive use of resources, unauthorized automation, or misuse of features.
7.2. Prohibited Activities
Excessive Resource Usage: Activities that result in disproportionately high data storage, calendar creation, or system resource usage may be subject to review and limitations. For paid plans, this will be managed according to the specified limits and allowances for your chosen plan.
Misuse and Automation: Automating access, interactions, or manipulations through bots, scripts, or other unauthorized means is prohibited for all users.
Unauthorized Access and Sharing: Sharing login credentials with unauthorized parties or providing third parties with unauthorized access to any HeyOrca service (including free and paid plans) is a breach of this policy.
Commercial Exploitation: Reselling, bundling, or otherwise commercially exploiting HeyOrca’s services without explicit permission is not allowed.
Malicious Activities: Any behavior that attempts to compromise HeyOrca’s services, including hacking, data extraction, or intentionally disrupting the user experience, is strictly prohibited.
7.3. Fairness and Integrity of Service
Monitoring and Compliance: HeyOrca may monitor usage to ensure compliance with this Fair Use Policy. If your usage appears to breach this policy, we may contact you to discuss adjustments or offer recommendations to bring usage in line with fair use practices.
Plan-Specific Conditions: Usage limits, features, and allowances differ based on the plan selected. Paid plans may offer higher resource thresholds, while free plans will have defined usage caps.
In severe or repeated breaches, HeyOrca reserves the right to impose limits, modify plan terms, suspend, or terminate access to services.
7.4. Adjustments and Modifications
HeyOrca reserves the right to update, modify, or change the Fair Use Policy at any time. Significant changes will be communicated to users. Continued use of HeyOrca’s services indicates agreement with the updated terms.
By accessing or using HeyOrca services, whether under a free or paid plan, you acknowledge and agree to comply with this Fair Use Policy. This ensures a consistent and fair experience for all members of the HeyOrca community.
8. IP & FEEDBACK.
8.1. IP Rights to the HeyOrca Platform. HeyOrca retains all right, title, and interest in and to the HeyOrca Platform, including without limitation all software used to provide the HeyOrca Platform and all graphics, user interfaces, logos, and trademarks reproduced through the HeyOrca Platform. This Agreement does not grant Customer any intellectual property license or rights in or to the HeyOrca Platform or any of its components, except to the limited extent that such rights are necessary for Customer’s use of the HeyOrca Platform as specifically authorized by this Agreement. Customer recognizes that the HeyOrca Platform and its components are protected by copyright and other laws.
8.2. IP Rights to the Customer Content. Customer retains all rights to any Customer Content that Customer or Users provide, upload, or display through the HeyOrca Platform. Accordingly, Customer grants HeyOrca a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to use, copy, operate, reproduce, process, adapt, translate, modify, publish, transmit, display and distribute its Customer Content for the purposes of providing, supporting, enhancing, and developing HeyOrca’s products and services.
8.3. Feedback. HeyOrca has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer or Users give HeyOrca, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict HeyOrca’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. For greater certainty, Feedback will not be considered Customer’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of HeyOrca’s products or services.)
9. CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items HeyOrca discloses to Customer: (a) any document HeyOrca marks “Confidential”; (b) any information HeyOrca designates as “Confidential” at the time of disclosure, provided HeyOrca confirms such designation in writing within 5 business days; and (c) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include HeyOrca’s valuable trade secrets.
9.1. Nondisclosure.
(a) Customer will not use Confidential Information for any purpose other than as specified and agreed by HeyOrca at the time of HeyOrca’s disclosure (the “Purpose”).
(b) Customer: (i) will not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Section 9.1; and (ii) will not disclose Confidential Information to any other third party without HeyOrca’s prior written consent.
(c) Customer will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer will promptly notify HeyOrca of any misuse or misappropriation of Confidential Information that comes to Customer’s attention.
(d) Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; however, in such circumstances. Customer will give HeyOrca prompt notice of any such legal or governmental demand, and reasonably cooperate with HeyOrca in any effort to seek a protective order or otherwise to contest such required disclosure, at HeyOrca’s expense.
9.2. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 9.1 above (Nondisclosure) will terminate two (2) years after the date of disclosure; provided that such obligations related to Confidential Information constituting HeyOrca’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer will destroy HeyOrca’s Confidential Information in its possession or control.
9.3. Injunction. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 9; (b) it would be difficult to determine the damages resulting from its breach of this Article 9, and such breach would cause irreparable harm to HeyOrca; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that HeyOrca prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. This Section 9.3 does not limit either party’s right to injunctive relief for breaches not listed.
9.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. HeyOrca will retain all right, title, and interest in and to all Confidential Information.
10. REPRESENTATIONS & WARRANTIES.
10.1. From HeyOrca. HeyOrca represents and warrants that:
(a) it is the owner of the HeyOrca Platform and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the HeyOrca Platform set forth in this Agreement without the further consent of any third party;
(b) in case of breach of the warranty above in this Section 10.1(a), HeyOrca, at its own expense, will promptly:
(i) secure for Customer the right to continue using the HeyOrca Platform;
(ii) replace or modify the HeyOrca Platform to make it non-infringing; or
(iii) if such remedies are not commercially practical in HeyOrca’s reasonable opinion, refund the fees paid for the HeyOrca Platform for every month remaining in the then-current Term following the date after which Customer access to the HeyOrca Platform ceases as a result of such breach of warranty;
(c) if HeyOrca exercises its rights pursuant to Section 10.1(b) above, Customer will promptly cease all use of the HeyOrca Platform. This Section 10.1, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and HeyOrca’s entire liability for breach of the warranty above in this Section 10.1.
10.2. From Customer. Customer represents and warrants that:
(a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement;
(b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the HeyOrca Platform; and
(c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
10.3. Warranty Disclaimers.
(a) EXCEPT TO THE EXTENT SET FORTH IN SECTION 10.1 ABOVE, CUSTOMER ACCEPTS THE HEYORCA PLATFORM “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
(b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) HEYORCA DOES NOT REPRESENT OR WARRANT THAT THE HEYORCA PLATFORM WILL PRODUCE ACCURATE OR RELEVANT CONTENT FOR THE CUSTOMER, OR OTHERWISE PERFORM WITHOUT INTERRUPTION OR ERROR; AND (B) HEYORCA DOES NOT REPRESENT OR WARRANT THAT THE HEYORCA PLATFORM IS 100% GUARANTEED TO BE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, DESPITE EMPLOYING REASONABLE SECURITY MEASURES.
(c) HEYORCA IS NOT RESPONSIBLE, AND WILL NOT BE LIABLE, FOR THE CONTENT MADE AVAILABLE THROUGH THE HEYORCA PLATFORM, INCLUDING CUSTOMER CONTENT, MENTIONS, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. HEYORCA DOES NOT CONTROL OR APPROVE ANY CONTENT MANAGED BY THE CUSTOMER ON BEHALF OF ITS END USERS, AND IS NOT RESPONSIBLE FOR ANYTHING POSTED, TRANSMITTED, OR SHARED BY THE CUSTOMER ON OR THROUGH THE HEYORCA PLATFORM.
11. INDEMNIFICATION.
11.1. Customer will defend, indemnify, and hold harmless HeyOrca and the HeyOrca Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the HeyOrca Platform, including without limitation:
(a) claims by Users or by Customer’s employees, as well as by Customer’s own customers;
(b) claims related Data Incidents (as defined below); and
(c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the HeyOrca Platform through Customer’s account, including without limitation by Customer Data.
11.2. INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATED TO CUSTOMER’S GROSS NEGLIGENCE.
11.3. Customer’s obligations set forth in this Article 11 include, without limitation:
(a) settlement at Customer’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and
(b) reimbursement of reasonable legal fees incurred before Customers’ assumption of the defense (but not legal fees incurred thereafter).
11.4. If Customer fails to assume the defense on time to avoid prejudicing the defense, HeyOrca may defend the Indemnified Claim, without loss of rights pursuant to this Article 11.
11.5. HeyOrca will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a HeyOrca Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation.
11.6. For the purposes of this Article 11:
(a) “HeyOrca Associates” are HeyOrca’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns; and
(b) A “Data Incident” is any (i) unauthorized disclosure of, access to, or use of Customer Data, including without limitation Excluded Data, or (ii) violation of Privacy/Security Law through Customer’s account. Data Incidents include, without limitation, such events caused by Customer, by HeyOrca, by Customer’s customers or other users, by hackers, and by any other third party.
12. LIMITATION OF LIABILITY.
12.1. Liability Cap. HEYORCA’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE CUMULATIVE SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
12.2. Excluded Damages. Except with regard to breaches of Article 9 (Confidential Information), IN NO EVENT WILL HEYORCA BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
12.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 12 APPLY TO THE BENEFIT OF HEYORCA’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF HEYORCA IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Customer acknowledges and agrees that HeyOrca has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 12 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 12, HeyOrca’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, HeyOrca’s liability limits and other rights set forth in this Article 12 apply likewise to HeyOrca’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
13. MISCELLANEOUS.
13.1. Independent Contractors. The parties are independent contractors. Neither party is the agent of the other, and neither may make commitments on the other’s behalf or legally bind the other in any way.
13.2. Notices. HeyOrca may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to support@heyorca.com and such notices will be deemed received 72 hours after they are sent.
13.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
13.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without HeyOrca’s express written consent. Any purported assignment in violation of this clause will be null and void. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
13.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
13.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
13.7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed by the laws of the Province of Newfoundland and Labrador and the laws of Canada applicable therein, without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties. The parties consent to the personal and exclusive jurisdiction of the courts of Newfoundland and Labrador.
13.8. Conflicts. In the event of any conflict between this Agreement and any other HeyOrca policy posted online, the terms of this Agreement will govern.
13.9. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
13.10. Amendment. HeyOrca may amend this Agreement from time to time by posting an amended version at its website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives HeyOrca written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 4, Term, Modification, Cancellation And Refunds). Customer’s continued use of the HeyOrca Platform following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.