Terms of Use

The following “User License Agreement” governs your use of the software and services provided by Orchid Software Solutions, LLC.  (and its subsidiaries) (collectively, “Orchid”). This is a legal agreement between you and Orchid and incorporates the Privacy Policy at simplesurrogacy.o-jms.com. By registering your use of the Service (as defined below), you are accepting to be bound to the terms of this User License Agreement.

 

1. Definitions

(a) “Administrator” shall refer to the purchaser of the Services provided by Orchid and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on your behalf. An Administrator is assumed by Orchid to have the sole authority to administer the subscription and add, remove and manage Authorized Users. 

(b) “Agreement” shall mean this entire User License Agreement and incorporates by reference the Privacy Policy located at simplesurrogacy.o-jms.com.

(c) “Authorized User” shall mean the Administrator or the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Service who have been added to the account as users.

(d) “Confidential Information” shall mean the Content (as defined in Section 1(e)) and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party’s premises.

(e) “Content” shall mean any information you upload or post to the Software or Service and any information provided by you to Orchid in connection with the Service, including, without limitation, information about your Authorized Users or Registered Clients, as defined herein.

(f) “Service” shall mean any software or services provided by Orchid, including but not limited to practice management software, customer relationship management (CRM) software and client intake software.

(g) “Security Emergency” shall mean a violation by Subscriber of this Agreement that (a) could disrupt (i) Orchid’s provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third party access to the Service.

(h) “You”, “Your” shall refer to the Administrator and Authorized User. 

 

2. Limited License & Use of the Service

2.1 Administrator and Authorized User are granted a non-exclusive, non-transferable, limited license to access and use the Service.

2.2 Orchid does not review or pre-screen the Content and Orchid claims no intellectual property rights with respect to the Content.

2.3 Administrators and Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from Orchid.

2.4 Administrators and Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Orchid, or any other software or service provided by Orchid.

2.5 Administrators and Authorized Users agree that they will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.

2.6 Administrators and Authorized Users agree that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.

2.7 Except for the non-exclusive license granted pursuant to this Agreement, Administrators and Authorized Users acknowledge and agree that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with Orchid.

2.8 Administrators and Authorized Users who configure the Service to share or make available certain Content to the public, are deemed to acknowledge and agree that everyone will have access to the Content (“Public Content”). It is the responsibility of the Administrators to determine if the Service being shared is appropriate for each Authorized User. Orchid reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Public Content that violates the terms of this Agreement, including, but not limited to, removal of such Public Content.

2.9 Orchid reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that Orchid shall provide Administrator with 30-days notice of any modification that materially reduces the functionality of the Service. Continued use of the Service following any modification constitutes Administrator’s acceptance of the modification.

2.10 Orchid reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two business days notice prior to any such suspension. Such notice shall be provided to you in advance through by way of notification within the Service, email or other notification method deemed appropriate by Orchid. Further, Orchid shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to the Subscriber, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, Orchid will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.

2.11 Orchid stores all Content on redundant storage servers. Administrators may elect to, at a regular interval, replicate all Content associated with the subscription to a third party storage service The replicated Content (“Escrowed Data”) will be held under the terms of a separate agreement exclusively between the Administrators and the third party storage service. The Administrator may also elect to replicate all Content associated with the subscription on its own storage device.

2.12 Administrator grants to Orchid a non-exclusive, royalty-free right during Administrator’s use of the Service, to use the Confidential Information for the sole purpose of performing Orchid’ obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for Orchid to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 4.1.

2.13 Orchid uses one code-base for all jurisdictions. Subscriber is required, using settings available within the Service, to configure the Service for its own jurisdiction and to verify that the settings meet the Subscriber’s requirements. Orchid will highlight known features that may require Subscriber review.

 

3. Access to the Service

3.1 Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.

3.2 Each Authorized User will be provided with a unique identifier to access and use the Service (“Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.

3.3 Administrators are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.

3.4 As between Orchid and the Administrator, any Content uploaded or posted to the Service remains the property of the Administrator. Upon Cancellation or Termination of Service as discussed in Section 8 below, Orchid shall only be responsible for the return of Content directly to the Administrator or a designated Authorized User in the event that the Administrator is unable to be reached.

3.5 All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.

3.6 Authorized Users are permitted to access and use the Service using an Application Program Interface (“API”) subject to the following conditions:

(a) any use of the Service using an API, including use of an API through a third-party product that accesses and uses the Service, is governed by these Terms of Service;

(b) Orchid shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Orchid has been advised of the possibility of such damages), resulting from any use of an API or third-party products that access and use the Service via an API;

(c) Excessive use of the Service using an API may result in temporary or permanent suspension of access to the Service via an API. Orchid, in its sole discretion, will determine excessive use of the Service via an API, and will make a reasonable attempt to warn the Administrator prior to suspension; and

(d) Orchid reserves the right at any time to modify or discontinue, temporarily or permanently, access and use of the Service via an API, with or without notice.

 

4. Confidentiality

4.1 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.

4.2 Orchid and any third party vendors and hosting partners it utilizes to provide the Service shall hold Content in strict confidence and shall not use or disclose Content except (a) as required to perform their obligations under this Agreement and (b) in compliance with directions agreed upon in writing between you and Orchid. 

 

5. Security and Access

5.1 Orchid is responsible for providing a secure method of authentication and accessing its Service. Orchid will provide mechanisms that:

(a) allow for user password management

(b) transmit passwords in a secure format

(c) protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.

5.2 Administrators and Authorized Users will be responsible for protecting the security of usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.

5.3 Administrators and Authorized Users will implement policies and procedures to prevent unauthorized use of usernames and passwords, and will promptly notify Orchid upon suspicion that a username and password has been lost, stolen, compromised, or misused.

5.4 At all times, Orchid, and any third party vendors and hosting partners it utilizes to provide the Service, will:

(a) use information security best practices for transmitting and storing your Content, adhering to industry standards;

(b) employ information security best practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management;

(c) ensure its host facilities maintain industry standards for security and privacy; and

5.5 Orchid shall report to Administrator, with all relevant details (except those which could prejudice the security of data uploaded by other customers), any event that Orchid reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). Orchid shall make such report within 72 hours after learning of the Security Breach.

5.6 In the event of a Security Breach, Orchid shall (a) cooperate with Administrator to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Administrator in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Administrator in any litigation or investigation against third parties that Administrator undertake to protect the security and integrity of Content; and (d) use commercially reasonable endeavors to mitigate any harmful effect of the Security Breach.

 

6. Legal Compliance

6.1 Orchid maintains that its primary duty is to protect the Content to the extent the law allows. Orchid reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter. If Orchid is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then Orchid will provide Administrator with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Administrators may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Orchid may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.

 

7. Payment, Refunds, and Subscription Changes

7.1 Subscribers with paid subscriptions will provide Orchid with a valid credit card for payment of the applicable subscription fees. All subscription fees are exclusive of all federal, state, provincial, municipal or other taxes which User agree to pay based on where the Subscriber is primarily domiciled. In addition to any fees, the User may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.

7.2 No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, including, but not limited to, instances involving the removal of a User.

7.3 There are no charges for cancelling a subscription.

 

7.4 All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Administrator, or in the form of an announcement on the Service.

7.5 Subscriber is responsible for paying all taxes associated with the subscription to the Service. If Orchid has the legal obligation to pay or collect taxes for which Subscriber is responsible under this section, the appropriate amount shall be charged to and paid by Subscriber, unless Subscriber provides Orchid with a valid tax exemption certificate authorized by the appropriate taxing authority.

7.6 Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Orchid receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

8. Cancellation and Termination

8.1 Administrators are solely responsible for canceling subscriptions. An Administrator may cancel their subscription at any time by accessing the Service and visiting simplesurrogacy.o-jms.com as applicable. For security reasons, cancellations shall only be performed by an Administrator using the account cancellation URL within the Service. The Administrator may be directed, within the Service, to call support to complete the cancellation. Cancellations shall not be accepted by any other means.

8.2 Orchid in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of this Agreement and (b) create a Security Emergency.

8.3 If (i) Authorized Users use the Service to materially violate this Agreement in a way that does not create a Security Emergency; (ii) Orchid provides Subscriber with commercially reasonable notice of this violation; (iii) Orchid uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to Orchid’s reasonable satisfaction within thirty (30) days of such notice, then Orchid reserves the right to suspend access to the Service.

8.4 upon cancellation or termination of a subscription, Content is made available to the Administrator. Following a period of no less than ninety (90) days from the cancellation or termination of a subscription, all Content associated with such subscription will be irrevocably deleted from the Service. All Escrowed Data, if any, will continue to remain available for a period of six months upon cancellation or termination of a subscription in accordance with the terms of the third- party storage service.

 

9. Limitation of Liability

9.1 Except in the case of a violation by Orchid of its obligations under Section 4 above (“Confidentiality”), Section 5 above (“Security and Access”), and Section 7 above (“Managed Backup and Archiving”), and except as provided in Indemnification Section below (“Indemnification”), Orchid shall not be liable for and you waive the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Services provided to Administrator or Authorized User by Orchid.

9.2 YOU AGREE THAT THE LIABILITY OF ORCHID ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT YOU HAVE PAID FOR THE SERVICE PURSUANT TO THE AGREEMENT WITHIN THE SIX MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE. YOU FURTHER AGREE THAT ORCHID IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER ORCHID HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ARE NOT APPLICABLE TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 11.2. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ORCHID TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.

9.3 Administrator will solely be responsible for any damage and/or loss of Content contained in Administrator’s technology which occurs as a result of Administrator’s electronic equipment and/or computer system.

 

10. Disclaimer of Warranties

10.1 ORCHID HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO ANY SERVICES PROVIDED BY ORCHID. NOTHING IN THIS SECTION 11.1 SHALL MODIFY ORCHID’S OBLIGATION TO INDEMNIFY SUBSCRIBER AS REQUIRED BY SECTION 10.2(A) OF THIS AGREEMENT (“INDEMNIFICATION”).

10.2 Orchid makes no warranty that its services when provided to you in digital or electronic format will be compatible with your computer and/or other equipment, or that these Services will be secure or error free. Nor does Orchid make any warranty as to any results that may be obtained from the use of the Service. Nothing in this Section 11.2 shall modify Orchid’s obligations under Section 4 above (“Confidentiality”) or Section 5 above (“Security and Access”) or Orchid’s obligation to indemnify you as required by Section 10.2(b) of this Agreement (“Indemnification”).

10.3 Orchid hereby disclaims all warranties of any kind related to your hardware or software beyond the warranties provided by the manufacturer of your hardware or software.

11. Indemnification

11.1 Administrator hereby agrees to indemnify and hold harmless Orchid from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following:

1. Authorized Users’ breach of any obligation stated in this Agreement, and
2. Authorized Users’ negligent acts or omissions.

Orchid will provide prompt notice to Administrator of any indemnifiable event or loss. Administrator will undertake, at Administrator’s own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to Orchid. Orchid reserves the right to participate in the defense of the claim, suit, or proceeding, at Orchid’ expense, with counsel of Orchid’ choosing.

11.2 Orchid shall defend, indemnify and hold Subscriber harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Administrator by a third party

1. alleging that the Service, or use of the Service as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of this Agreement, or a trademark of a third party or involves the misappropriation of any trade secret of a third party; provided, however, that Administrator:

(a) promptly gives written notice of the Claim to Orchid (provided, however, that the failure to so notify shall not relieve Orchid of its indemnification obligations unless Orchid can show that it was materially prejudiced by such delay and then only to the extent of such prejudice); (b) gives Orchid sole control of the defense and settlement of the Claim (provided that Orchid may not settle any Claim unless it unconditionally releases Subscriber of all liability); and (c) provides to Orchid, at Orchid’s cost, all reasonable assistance. Orchid shall not be required to indemnify Administrator in the event of: (x) modification of the Service by Administrator in conflict with Administrator’s obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (y) use of the Service in combination with any other product or service not provided by Orchid to the extent that the infringement or misappropriation would not have occurred but for such use; or (z) use of the Service in a manner not otherwise contemplated by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use; or

1. arising out of or related to a violation by Orchid of its obligations under Section 4 above (“Confidentiality”) or Section 5 above (“Security and Access”),

 

12. Miscellaneous

12.1 Technical support and training are available to Authorized Users with active subscriptions, and is available by telephone, email or electronic support ticket, as defined at simplesurrogacy.o-jms.com.

12.2 You acknowledge and agree that Orchid may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.

12.3 Orchid may provide the ability to integrate the Service with third party products and services that Administrator may use at Administrator’s option and risk. Access to and use of any third party products and services are subject to the separate terms and conditions required by the providers of the third party products and services. Administrator agrees that Orchid has no liability arising from Administrator’s use of any integrations or arising from the third party products and services. Orchid can modify or cancel the integrations at any time without notice. For purposes of calculating downtime, calculation does not include the unavailability of any integration or any third party products or services.

12.4 You acknowledge the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. You agree to accept that risk and will not hold Orchid liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only Orchid, with strict business reasons, may access and transfer the Content and only to provide Administrator with the Service. Orchid will make reasonable efforts to provide notice to Administrator prior to such access and transfer. Orchid’ actions will comply with its obligations under Sections 4 and 5 of this Agreement.

12.5 The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.

12.6 This Agreement constitutes the entire agreement between You and Orchid and governs your use of the Service, superseding any prior agreements between You and Orchid (including, but not limited to, any prior versions of this agreement).

12.7 Orchid reserves the right to amend this Agreement. In the event of material changes to the Agreement, Orchid will notify Administrators, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by the Administrator after reasonable notice will be considered acceptance on behalf of themselves and their Authorized Users of any new terms.

12.8 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.

12.9 Governing Law and Venue. This Agreement and your relationship with Orchid shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws of the State of Florida and shall be considered to have been made and accepted in West Palm Beach, Florida, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the courts situated in Palm Beach County, Florida, and You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and legal fees.

 

13. SMS Messaging

13.1 By providing your mobile telephone number and affirmatively opting in to receive SMS messages, you expressly authorize Orchid Software Solutions, LLC to send recurring automated and non-automated text messages through the Orchid Journey Management System ("Orchid JMS") regarding your use of the Orchid JMS platform, including administrative, operational, transactional, account, support, and other service-related communications concerning the software and services made available through the platform. Message frequency varies depending on your interactions with the platform. Message and data rates may apply based on your wireless carrier and service plan. Consent to receive SMS messages is voluntary and is not a condition of purchasing any goods or services. You may withdraw your consent at any time by replying STOP to any text message. For assistance, reply HELP or contact Orchid Support at info@orchidsoftsolutions.com or 352-870-9945. Wireless carriers are not liable for delayed or undelivered messages. Information regarding Orchid's collection and use of personal information is described in Orchid's Privacy Policy.