Orchestra Bio, Inc. Terms and Conditions

Last Updated: 02/09/2026

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”), WHICH ALONG WITH ANY APPLICABLE ORDER FORM REFERENCING THESE TERMS (AN “ORDER FORM”) AND ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”) CONSTITUTE THE AGREEMENT BETWEEN THE ENTITY IDENTIFIED AS CUSTOMER ON THE ORDER FORM (“YOU” OR “CUSTOMER”), AND ORCHESTRA BIO, INC., A DELAWARE CORPORATION WITH OFFICES AT 240 STOCKTON STREET, 4th FLOOR, SAN FRANCISCO, CA 94108 (“ORCHESTRA”). ORCHESTRA AND CUSTOMER ARE HEREINAFTER JOINTLY DEFINED AS THE “PARTIES” OR INDIVIDUALLY A “PARTY”.

BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS, OR BY ACCESSING OR USING, OR SUBSCRIBING TO USE, THE SERVICE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (PERSONALLY AND ON BEHALF OF ANY COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT WHEN USING THE SERVICE OR THAT YOU NAME AS THE USER WHEN YOU CREATE AN ACCOUNT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT AND TO BIND ANY SUCH COMPANY OR LEGAL ENTITY TO THIS AGREEMENT. EACH ORDER FORM IS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.

Orchestra may change these Terms from time to time at its sole discretion, and if it makes any material changes, Orchestra will attempt to notify Customer by sending Customer an email to the last email address provided to Orchestra and/or posting a notice on Orchestra’s website.  Therefore, Customer agrees to promptly notify Orchestra of any changes to Customer’s email address. Any material changes to these Terms will be effective upon the earlier of (1) Customer’s acceptance of the new Terms if Orchestra provides a mechanism for Customer’s immediate acceptance in a specified manner (such as a click-through review and acceptance mechanism) or (2) the next renewal date of the Agreement pursuant to the applicable Order Form.

Accordingly, the parties agree as follows:

• Order Forms; Access to the Service.
  
  

  • For each Order Form, subject to Customer’s compliance with the terms and conditions of the Agreement (including any limitations and restrictions set forth on the applicable Order Form) Orchestra will provide Customer with access to the Orchestra product(s) and/or service(s) specified in such Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for use by Customer solely for its internal business purposes, in accordance with the terms of this Agreement and in accordance with Orchestra’s applicable official user documentation for such Service (the “Documentation”).  References to the Service shall include the Documentation.  Customer may permit any User (as defined in Section 1(b) below) to access and use the features and functions of the Service as contemplated by this Agreement.
    
    

  • Customer shall designate an administrator(s) who are authorized by Customer to manage and administer the Customer’s use of the Service (each, an “Admin User”), including establishing access rights and permissions for each End User to data and features within the Service (the “User Permissions”).  “End User” means an individual within the Customer’s organization or an individual employed by a client of Customer. Customer acknowledges and agrees that Customer (through the Admin User), and not Orchestra, is responsible and liable for (i) managing the creation, modification, User Permissions and removal of End User accounts; and (ii) granting each End User appropriate User Permissions.  Any breach of this Agreement by an Admin User or End User (collectively, “Users”) shall be deemed a breach of this Agreement by Customer.
    
    

  • Where the parties have agreed to Orchestra’s provision of professional services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (“SOW” and such professional services, the “Professional Services”).  The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement.  To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
    
    

• Implementation. Upon payment of any applicable fees set forth in each Order Form, Orchestra agrees to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”).  If Customer requests Implementation Assistance in excess of any agreed-upon hours estimate set forth in the Order Form, or if Customer otherwise requests additional services beyond those agreed in an Order Form, Customer will pay Orchestra at its then-current hourly rates for consultation.
  
  

• Support; Service Levels. Subject to Customer’s payment of all applicable fees, Orchestra will provide reasonable support and maintenance for each Service (“Service Level Support”) pursuant to the support service levels set forth in Exhibit A (“Support Services Addendum”).
  
  

• Service Updates. For so long as Customer is current with its payment of the fees, Orchestra will provide upgrades, patches, enhancements, or fixes for the Services that Orchestra makes commercially generally available to its customers without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement. Customer understands that Orchestra may make improvements and modifications to the Services at any time in its sole discretion, provided that Orchestra shall give Customer reasonable prior notice of any material changes and further provided that such improvements or modifications will not have a material adverse impact on Customer’s use of the Services.
  
  

• Ownership; Feedback. As between the parties, Orchestra retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Orchestra for the purposes of this Agreement, including any copies and derivative works of the foregoing.  Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement.  No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.  Customer may (but is not obligated to) provide suggestions, comments or other feedback to Orchestra with respect to the Service (“Feedback”). Orchestra acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind.  Notwithstanding anything else, Customer shall, and hereby does, grant to Orchestra a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.  Nothing in this Agreement will impair Orchestra’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute. Customer acknowledges and agrees that Orchestra may compile de-identified, anonymized and/or aggregated statistical information related to the usage and performance of the Services (e.g., page loading times, bug tracking analytics, etc.) (“Usage Data”).  Orchestra owns all Usage Data and may use Usage Data for any legal purpose, including developing, improving or enhancing the Services and any other current or future offerings of Orchestra, provided that such information is not identifiable to or associated with Customer.
  
  

• Fees; Payment. Customer shall pay Orchestra fees as set forth in each Order Form (“Fees”).  All Fees shall be invoiced in accordance with the Order Form and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from the date the invoice is received by Customer. Past due invoices are subject to interest on any outstanding balance of the lesser of 1% per month or the maximum amount permitted by law.  Customer shall be responsible for all taxes associated with Service (excluding taxes based on Orchestra’s net income).  Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then Orchestra shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form, in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable) such renewal shall include the additional fees for such excess users and usage.  Customer will reimburse Orchestra for reasonable expenses incurred by Orchestra in performing Professional Services at sites other than Orchestra facilities that are evidenced by valid receipts.
  
  

• Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any User or other third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with the Service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Orchestra may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity (including, for the avoidance of doubt, all Users’ activity) in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service.  Customer (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not knowingly use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
  
  

• Customer Data; Confidentiality.
  
  

  • For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer or its Users to the Service in the course of using the Service.  Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein.  Customer, not Orchestra, shall have sole responsibility and liability for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Orchestra as contemplated hereunder, in each case without any known infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Orchestra shall maintain the security and integrity of the Service and the Customer Data.  Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, including Customer’s Users.  Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent, provided that Customer is given an opportunity to retrieve such data before deletion.  Notwithstanding anything to the contrary, Customer acknowledges and agrees that Orchestra may (i) internally use and modify (but not disclose) Customer Data solely for the purposes of providing the Service to Customer.
    
    

  • Confidentiality. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limitation, Customer Confidential Information shall include Customer Data, information regarding Customer’s business, technology, processes, product and technical information, customer information, and any information of a third party user that is submitted in connection with the Services Orchestra provides to Customer. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party on a non-confidential basis without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party on a non-confidential basis without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. The Receiving Party (i) shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) shall not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
    
    

• Third Party Integrations. Customer acknowledges and agrees that (i) the Service may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (e.g., other vendors of Customer) (“Third Party Integrations”), (ii) the availability and operation of the Service or certain portions thereof may be dependent on Orchestra’s ability to access such Third Party Integrations, and (iii) Customer’s failure to provide adequate access or any retraction of permissions relating to such Third Party Integrations may result in a suspension or interruption of the Service. Customer hereby represents and warrants that it has all rights, licenses, permissions and consents necessary to connect, use and access any Third Party Integrations that it integrates with the Service, and Customer shall indemnify, defend and hold harmless Orchestra for and from all third party claims, damages and liabilities arising out of Customer’s use of any Third Party Integrations in connection with or through the Service.  Orchestra cannot and does not guarantee that the Service shall incorporate (or continue to incorporate) any particular Third Party Integrations and does not make any representations or warranties with respect to Third Party Integrations. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Integrations (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof.  Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
  
  

• Term; Termination. This Agreement shall commence as of the first Order Form’s Effective Date (as such term is defined in the Order Form) and, unless earlier terminated in accordance herewith, shall last until the expiration of the last to expire Order Form Term (as defined in the following sentence).  For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form and shall continue for the term specified on such Order Form. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice.  Without limiting the foregoing, Orchestra may suspend or limit Customer’s access to or use of the Service if Customer’s use of the Service results in damage to or material degradation of the Service which interferes with Orchestra’s ability to provide access to the Service to other customers; provided that: (a) Orchestra shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Orchestra shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Orchestra shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.  Upon termination of this Agreement or any Order Form, Customer shall cease use of the Services and Orchestra will return to Customer all Customer Data.  The following provisions of this Agreement shall survive termination: Sections 5, 6, 7, 8, and 10 through 14. For clarity, any services provided by Orchestra to Customer, including any assistance in exporting the Customer Data, shall be billable at Orchestra’s standard rates then in effect.
  
  

• Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any third party claim that (i) the indemnifying party materially breached this Agreement or any Order Form; (ii) the indemnifying party materially breached this Agreement or any Order Form; (iii) the Customer Data or Customer’s use of the Service (in the case of Customer as Indemnitor), or (iv) the Service (in the case of Orchestra as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right.  Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).  The foregoing obligations of Orchestra do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (1) not created or provided by Orchestra (including without limitation any Customer Data), (2) made in accordance to Customer’s written specifications, (3) modified by anyone other than Orchestra (or someone instructed by Orchestra)  after delivery by Orchestra, or (4) combined with other products, processes or materials not provided or authorized in writing by Orchestra (where the alleged Losses arise from or relate to such combination), or (5) Customer’s use of the Service is not in accordance herewith.
  
  

• Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 13 OF THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
  
  

• Representations and Warranties; Limitation of Liability.
  
  

  • Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has, and throughout the Term will retain, the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; and (iii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of the party.
    
    

  • Orchestra hereby represents and warrants to Customer the following:
    
    

    • No Material Defects. The Service to be provided shall substantially conform to materials describing the Service hereunder completely and accurately reflect their operation and functionality.
      
      

    • All Rights; No infringement. Orchestra has all rights and authorizations necessary to grant access and use rights to the Service, and to perform any services as contemplated herein. To Orchestra’s knowledge at the Effective Date, the Service and all elements thereof to be provided by Orchestra, and any services performed by Orchestra, will not violate, misappropriate or infringe upon any intellectual property right of any person or entity; and there are no claims of any third party against Orchestra relating to any intellectual property that is the subject of, to be provided under, or to be used directly or indirectly pursuant to this Agreement.
      
      

    • Performance. To the extent Orchestra is performing Implementation Assistance or Service Level Support, at all times during the performance of such services, Orchestra has and will perform such services in a timely, workmanlike manner.
      
      

    • No Trojan Horse. Orchestra warrants that no portion of the Services include any “back door”, “time bomb”, “Trojan horse”, “worm”, “drop dead device” or other computer software routines or hardware components designed to (a) permit unauthorized access to, or use of, the Customer Data or computer systems on which the Customer Data are loaded; or (b) disable, damage or erase the Customer Data, or disable or damage computer systems on which the Customer Data are loaded. If any of the foregoing is discovered, Orchestra shall promptly, but in no event more than five (5) days after Customer’s notice thereof, correct the problem or provide a patch, work around or any other method to fix the problem, at no cost to Customer.
      
      

  • Limitation of Liability. EXCEPT FOR ORCHESTRA’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL ORCHESTRA, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) FEES PAID BY CUSTOMER TO ORCHESTRA HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
    
    

• Miscellaneous.
  
  

  • Entire Agreement. The Agreement represents the entire agreement between Customer and Orchestra with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Orchestra with respect thereto. In the event of any conflict between these Terms and an Order Form, the Order Form shall control.
    
    

  • Governing Law; Venue.  The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California.
    
    

  • Notices. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.  Notices to Orchestra must be sent to the contact for Orchestra set forth on the Order Form.  Notices to Customer must be addressed to “General Counsel” at the address set forth on the Order Form.  Either party may update its address set forth above by giving notice in accordance with this section.
    
    

  • Trials and Betas; Opt-In Features. Orchestra may offer optional Trials and Betas. Use of Trials and Betas is permitted only for Customer’s evaluation during the period designated by Orchestra on the Order Form. Orchestra may terminate Customer’s use of Trials and Betas at any time for any reason. Trials and Betas are provided “AS IS” and may be inoperable, incomplete or include features never released. Notwithstanding anything else in this Agreement, Orchestra offers no warranty, indemnity, SLA or Support for Trials and Betas and its liability for Trials and Betas will not exceed $1,000. Orchestra may offer additional features and functionality of the Service to which Customer must opt-in to (either as set forth in an Order Form or via a mechanism made available to Customer by Orchestra) (“Opt-In Features”).  Opt-In Features may be subject to additional terms (“Supplemental Terms”), which Customer must agree to prior to accessing or using the applicable Opt-In Feature. Such Supplemental Terms will either be set forth in the applicable opt-in process or will be presented to Customer for Customer’s acceptance when signing up for the applicable Opt-In Feature. If the terms set forth herein are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to the applicable Opt-In Feature.  Upon Customer’s acceptance of any Supplemental Terms, such Supplemental Terms are hereby incorporated and form a part of the Agreement.
    
    

  • Publicity. Orchestra may reference Customer as an Orchestra Services user on Orchestra’s website and investor materials including use of Customer’s logo. Customer may be mentioned in marketing and promotional materials, and participate in press announcements, case studies, trade shows, or other forms as reasonably requested by Orchestra.
    
    

  • Waiver; Severability. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.  The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
    
    

  • Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder to the extent such failure results from any cause beyond such party’s reasonable control and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”), including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts which go into effect after the Effective Date of this Agreement, provided that the non-performing party uses reasonable efforts to notify the other party and take reasonable steps to mitigate the effects of the Force Majeure Event.
    
    

  • Assignment. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Orchestra may utilize subcontractors in the performance of its obligations hereunder, provided that Orchestra shall be solely responsible for any such subcontractor’s performance and compliance with the terms of this Agreement, and for costs, expenses, damages, or losses of any nature arising out of such performance as if such performance had been provided by Orchestra itself under this Agreement.
    
    

  • Independent Contractors. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

EXHIBIT A

ORCHESTRA SUPPORT SERVICES ADDENDUM

THIS SUPPORT SERVICES ADDENDUM DEFINES A SERVICE ARRANGEMENT BETWEEN ORCHESTRA AND CUSTOMER AND IS NOT A PRODUCT WARRANTY.  THE SERVICES ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN SECTION 13 OF THE AGREEMENT. THESE TERMS AND CONDITIONS DO NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT.

Orchestra shall use commercially reasonable efforts to provide support and maintenance of the Services in accordance with the terms and conditions as set forth below.

APPLICABLE SERVICES LEVELS. Orchestra shall provide the Services to Customer with a System Availability of at least 97.5% during each calendar month. Orchestra may:

• Take the Service offline for scheduled maintenance provided that it provides Customer notice of such downtime in writing (though this scheduled maintenance time will not count as System Availability), and

• Change its schedule of maintenance with written notice to Customer.

SUPPORT. Orchestra shall use commercially reasonable efforts to provide Customer the following services:

• Access to a center capable of receiving information from Customer through electronic mail at any time or other electronic service supported by Orchestra (e.g., Slack) (“Orchestra Technical Support”) during Business Hours.
  
  

• Access to Orchestra Technical Support by up to 2 Customer employees designated in writing to have such access (“Authorized Contact Persons”). All inquiries to Technical Support may only be made by an Authorized Contact Person.
  
  

• Access to user documentation for the Services.

INITIAL RESPONSE TIMES. Orchestra shall use commercially reasonable efforts to respond to reported Errors within the following target timeframes.

Error Severity Level

Initial Response Time

Severity 1 Errors

6 Business hours

Severity 2 Errors

1 Business day

Severity 3 Errors

2 Business days

ERROR SEVERITY LEVELS. Following the initial Response as set forth above, Orchestra shall exercise commercially reasonable efforts to correct any Error reported by Customer in the current unmodified release of the Services in accordance with the Severity level reasonably assigned to such Error by Orchestra.

• Severity 1 Errors - Orchestra shall promptly: (i) assign Orchestra engineers to investigate the Error; (ii) provide Customer with updates on the status of the investigation; and (iii) initiate work to provide Customer with a Workaround or Fix.
  
  

• Severity 2 Errors - Orchestra shall promptly assign Orchestra engineers to investigate the Error and exercise commercially reasonable efforts to provide a Fix for the Error.
  
  

• Severity 3 Errors - Orchestra may include the Fix for the Error in the next regular release of the Service.

Customer is responsible for providing sufficient information and data regarding its reported Errors.

EXCLUSIONS. Orchestra shall have no obligation under this Support Services Addendum with respect to any: (i) portion of the Services incorporated with or into other software; (ii) problems with the Service caused by Customer’s negligence, abuse or misapplication, use of the Services other than as specified in Orchestra’s user manual or other causes beyond the control of Orchestra; or (iii) installation of the Services on any hardware that is not supported by Orchestra.

DEFINITIONS.

• “Business Hours” means 9:00 AM to 5:00 PM Pacific Time, Monday through Friday, excluding federal holidays.
  
  

• “Business Days” means Monday through Friday, excluding federal holidays.
  
  

• “Error” means a Services error which i)  degrades the Services as compared to Orchestra’s published performance specifications, and ii) has been reproduced by Orchestra. Upon detection of a suspected Error in the Services, Customer agrees to provide Orchestra with assistance as reasonably necessary in order to reproduce and confirm the existence of such Error.  Customer will reasonably cooperate with Orchestra in the diagnosis of an Error.
  
  

• “Fix” means the repair or replacement of the Services to remedy an Error.
  
  

• “Response” means communication from Orchestra to Customer acknowledging that an Error has been reported and describing Orchestra’s plan for remedying such Error.
  
  

• “Severity 1 Error” means an Error that renders the Services inoperative for production or causes the Services to fail catastrophically and has no known workaround.
  
  

• “Severity 2 Error” means an Error that substantially degrades the performance of the Services or materially restricts Customer's use of the Services.
  
  

• “Severity 3 Error” means an Error that causes only a minor impact on the performance or Customer’s use of the Services.
  
  

• “System Availability” means the percentage of minutes in a month that the key components of the Service are operational. “System Availability” will not include any minutes of downtime resulting from:
  
  

  • Scheduled downtime for maintenance,
    
    

  • Events of Force Majeure,
    
    

  • Suspension or termination of Customer’s right to use the Services in accordance with the Agreement,
    
    

  • Malicious attacks on the system,
    
    

  • Installation of the Services on any hardware that is not supported by Orchestra,
    
    

  • Issues associated with Customer’s computing devices, local area networks or internet service provider connections, or
    
    

  • Orchestra’s inability to deliver services because of Customer’s acts or omissions (including, without limitation, violation of Orchestra’s policies or nonfulfillment of its obligations under the Agreement).
    
    

• “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of the Service.
  
  

• “Trials and Betas” means access to the Application Services (or Application Services features) on a free, trial, beta or early access basis.