eAsset Management Services
Terms and Conditions
- Definitions. In addition to those terms defined in the Licensee Specific Information Sheet, the following terms have the following meanings in this Agreement:
“Administrative Users” means those employees or agents of Licensee whom Licensee authorizes to obtain from eOriginal a user name and password to access and use eCore.
“eCore” also known as Command Center, means that separate eAsset Management Services interface enabling Licensee to implement and operate the administrative and vault management functions of the eAsset Management Services as more fully described in the Licensee Specific Information Sheet. eCore is never embedded or framed in any Licensee website.
“End Users” means those employees or agents of Licensee and those third party, natural persons to whom Licensee provides a user name and password, or such other access codes, to access and use SmartSign Web.
“Fees” means those amounts described in the Licensee Specific Information Sheet to be paid by Licensee as consideration for eOriginal’s provision of the eAsset Management Services and, if an Expert Services Task Order is executed by Licensee, shall also mean those amounts described in such Task Order as consideration for eOriginal’s provision of Expert Services.
“Service Standards” means those service level standards with regards to performance of the eAsset Management Services, described here at https://www.eoriginal.com/service-standards, as updated from time to time.
“SmartSign Web” means that separate eAsset Management Services interface enabling Licensee and End Users to prepare and/or execute Transactions as more fully described in the Licensee Specific Information Sheet.
“Software” means the proprietary software of eOriginal or its vendors made available to Licensee and Users by eOriginal in connection with provision of the eAsset Management Services (including and not limited to, eCore, SmartSign Web and Command Center Workspace).
“Subscription Term” means a thirty six (36) month period during the Term. The first Subscription Term begins on the Effective Date.
“Technical Contacts” means those Administrative Users trained by eOriginal and designated by Licensee as Licensee’s sole contact persons for purposes of obtaining eAsset Management Services support and administration services from eOriginal.
“Transaction” means one or more documents and/or agreements which evidence an action or a set of actions occurring (i) between two or more persons conducting business, commercial, consumer, and/or governmental affairs and (ii) where Licensee is a party or assignee to at least one of the agreements in such documents.
“User(s)” refers individually and collectively to Administrative Users and End Users.
“User’s Guide” means, collectively, the documentation relating to the use, functionality and features of the eAsset Management Services, in any medium, which is separately provided to Licensee and made available to Users on Command Center and SmartSign Web, each as may be updated by eOriginal from time to time.
- Implementation and User Administration.
2.1 Implementation. After the Effective Date, eOriginal shall provision the eAsset Management Services and shall promptly provide to Licensee training in the integration, use and administration of the eAsset Management Services as described in the Licensee Specific Information Sheet. If Licensee has elected to integrate the eAsset Management Services with Licensee systems, software or websites: (i) after the Effective Date, Licensee shall begin integration of the eAsset Management Services within Licensee’s website and with Licensee’s document preparation systems; and (ii) beginning on the Effective Date and subject to the terms of this Agreement, eOriginal grants to Licensee, and Licensee accepts, a non-transferable (except as permitted under Section 10.1 below) and non-exclusive development license to use the object code of the Software to integrate the eAsset Management Services with software and/or services of Licensee to develop Licensee’s website; provided that no Software is installed off of Licensee’s premises without prior written notice to eOriginal. During implementation and training eOriginal shall allow Licensee and Administrative Users to access the eAsset Management Services for testing using dummy/non-production data and information in eOriginal’s integration testing environment to verify that the eAsset Management Services are ready for Transactions as described in this Agreement and the Service Standards.
2.2 Third Party Software. Licensee acknowledges that, to make effective use of the eAsset Management Services, Licensee and each User shall be required to separately obtain and maintain certain third party software, specifically including standard internet browsers and Adobe Acrobat Reader, of the types and in the versions as required in the User’s Guide. Licensee shall be solely responsible for selection of, procuring, compatibility of, and maintenance and support of, such third party software and all computer hardware and equipment that may be required in the User’s Guide to make effective use of the eAsset Management Services. eOriginal will update the eAsset Management Services to accommodate new versions or releases of such third party software or hardware on eOriginal’s standard development schedule at no additional charge to Licensee as support under Section 4 below.
2.3 User Names and Passwords. After the Effective Date, Licensee shall notify eOriginal of the identity of, and contact information for, each authorized Administrative User so as to allow eOriginal to provide each such Administrative User with a unique user name and preliminary password for access to eCore. Each such Administrative User may then log into eCore and select a unique password. Licensee and/or Administrative Users shall provide End Users with such access codes as they may need to access SmartSign Web. Licensee may terminate any User’s use of and access to the eAsset Management Services at any time and for any reason, without liability to eOriginal and without termination of this Agreement. eOriginal is not responsible for loss, misuse or other negligence concerning usernames, passwords or access codes in the possession, custody or control of any User.
2.4 User’s Guide. The User’s Guide specifies the rules governing use and access of the eAsset Management Services by Licensee and Users. Updates to the eAsset Management Services or any component thereof, and changes in the User’s Guide, by eOriginal will be generally announced by eOriginal from time to time.
2.5 Suspension of Users. In the event of material default of the User’s Guide or this Agreement by any User: (i) promptly upon becoming aware of such default, a party shall notify the other party of the identity of the User in breach and the nature of the breach; (ii) Licensee shall promptly take such action as reasonably necessary to end, remedy and protect against future occurrences of, such default; (iii) if such User is an End User, Licensee shall take action to prevent such User from future access to the eAsset Management Services (if such action is requested by eOriginal), and eOriginal shall have no liability to Licensee for such termination nor shall such termination effect a breach of this Agreement; and (iv) if such User is an Administrative User, eOriginal expressly reserves the right to immediately terminate access to the eAsset Management Services by such User without terminating this Agreement and without liability to Licensee. eOriginal also reserves the right, without terminating this Agreement and without liability to Licensee, to deactivate or suspend access to the eAsset Management Services by: (i) any Administrative User or Licensee if continued use presents a threat to the security of the other users of the eAsset Management Services, or (ii) Licensee and all Users if Licensee fails to timely cure non-payment defaults.
2.6 Website Integration. In the event that Licensee elects to frame SmartSign Web within a Licensee website:
3.1 Grant. Subject to the terms of this Agreement, beginning on the Effective Date and ending on the last day of the Term, eOriginal grants to Licensee, and Licensee accepts, a non-transferable (except as permitted under Section 10.1 below) and non-exclusive license to, within the eAsset Management Services Use and Scope (as defined in the Licensee Specific Information Sheet):
(i) allow Administrative Users to access and use the eAsset Management Services via eCore using authorized user names and passwords solely in connection with (a) the administration of Transactions on behalf of Licensee and (b) the provision of eAsset Management Services support to End Users;
(ii) allow End Users to access and use SmartSign Web using authorized user names and passwords solely in connection with Transactions; and
(iii) use, disclose, display, copy and reproduce the User’s Guide solely in connection with the rights granted in Section 3.1(i) and (ii) above.
3.2 Limitations. The licenses granted herein do not grant Licensee or any User any right to sublicense, distribute, transfer or transmit the eAsset Management Services or any portion thereof. Except as expressly permitted in this Agreement, Licensee shall not, and shall not permit any User to: (i) attempt, knowingly permit or encourage other persons or entity to copy, translate, decompile, decipher, disassemble, reverse engineer or otherwise decrypt or in any other manner discover the source code of all or any portion of the Software; (b) alter, modify, adapt or create derivative works of, or market, sell, distribute or transfer in any way, the Software or the User’s Guide, or any portion thereof, in any way; or (c) use external programs to alter, edit or append records to the data files or other information maintained within the eAsset Management Services.
- Ongoing Support.
4.1 Service Standards. eOriginal shall provide to Licensee ongoing telephone and electronic mail eAsset Management Services administration and support services as more fully described in the Service Standards. Licensee shall designate certain Administrative Users as Technical Contacts for purposes of seeking on behalf of Licensee eOriginal support services. Such Technical Contacts shall follow all issue escalation procedures established by eOriginal. eOriginal is expressly authorized by Licensee to rely upon any and all instructions, whether in written, electronic or oral form, given by any of Licensee’s Technical Contacts.
4.2.1 eOriginal may utilize independent contractors to perform any part of the eAsset Management Services or to perform any Expert Services, and eOriginal shall remain solely responsible for the performance of all of the eAsset Management Services and Expert Services that are subcontracted. Licensee shall continue to direct all communications exclusively to eOriginal, and eOriginal shall indemnify and defend Licensee against all claims of such subcontractors against Licensee.
4.2.2 Licensee may utilize independent contractors to develop, implement, maintain and operate those portions of Licensee’s website, systems and software not consisting of the eAsset Management Services and/or to perform any portion of its responsibilities under this Agreement, and Licensee shall remain solely responsible for the performance of all such services that are subcontracted. Licensee shall indemnify and defend eOriginal against all claims of such subcontractors against eOriginal or eOriginal’s subcontractors.
5.1 Invoicing. Licensee shall be responsible for the payment of all Fees associated with use of the eAsset Management Services by Licensee and all Users. Fees are due and payable as set forth in the Licensee Specific Information Sheet, or within twenty (20) days after the date of each invoice, whichever is earlier. Licensee shall pay eOriginal interest at the rate of interest equal to one and one-half percent (1.5%) per month on all Fees not timely paid, calculated on a daily basis. All Fees due under this Agreement are net amounts to be received by eOriginal, exclusive of all taxes, duties, sales taxes, assessments and similar taxes, and are not subject to offset or reduction. Licensee agrees to indemnify and hold eOriginal harmless for all such taxes, duties, sales taxes, assessments and similar taxes unpaid by Licensee. Alternatively, Licensee will provide eOriginal with a certificate acceptable to the taxing authority exempting Licensee from payment of these taxes. This Section 5 shall not apply, however, to taxes based on eOriginal’s net income or gross receipts, which shall be eOriginal’s sole responsibility.
5.2 Minimum Commitment. Licensee may elect to increase the Minimum Commitment for an upcoming Subscription Term by notice to eOriginal at least forty five (45) days prior to the last day of the then current Subscription Term. Upon receipt of Licensee’s notice, eOriginal will provide Licensee with the volume discount pricing applicable to the new Minimum Commitment selected by Licensee. Such new Minimum Commitment, and the applicable per Transaction volume discount pricing, will apply to Licensee’s Fees and eOriginal’s invoicing for the upcoming Subscription Term.
5.3 Renewal Subscription Terms. Upon each renewal of this Agreement for another Subscription Term, there is an additional Fee for Transactions continuing under management. This fee will be described in the renewal pricing provided by eOriginal at the time of renewal, and will not exceed twenty percent (20%) of the eAsset Management Services per Transaction Fee for the renewal Subscription Term times the number of Transactions in eCore at the time of renewal, times the number of years in the renewal Subscription Term. eOriginal shall have the right to adjust any of the Fees for each renewal Subscription Term, provided that any increase shall not exceed fifteen percent (15%) over the prior Fees. eOriginal shall notify Licensee of any such change in the Fees at least ninety (90) days before the first day of the renewal Subscription Term.
- Covenants, Warranties and Remedy.
6.1 System Operation and Services. eOriginal warrants that the eAsset Management Services shall be provided and maintained in accordance with the Service Standards and this Agreement during the Term. Additionally, eOriginal warrants that it will perform all services under this Agreement, including specifically the eAsset Management Services and the Expert Services, in a professional manner and to generally accepted industry standards.
6.2 Legal Compliance. eOriginal represents and covenants that the eAsset Management Services include functionality, with respect to those portions of Transactions consisting of electronic contracts which were created using, and uploaded into, the eAsset Management Services (the “eContracts”), which allows Licensee to comply with the provisions of, as applicable: (i) any applicable state implementation of the Uniform Commercial Code Article 9-105(b) and its requirements for managing electronic chattel paper as transferable digital assets, including the ability to manage and securely maintain a single authoritative copy of each such eContract that is unique and readily identifiable; (ii) any applicable state implementation of the Uniform Electronic Transactions Act and its requirements for managing electronic contracts as transferable records; and (iii) the Electronic Signatures in Global and National Commerce Act (ESIGN). eOriginal also covenants that it shall provide Updates and Versions of the Software (as such terms are defined in the Service Standards) to ensure continued compliance with the above representation and warranty made in this Section 6.2 during the Term of this Agreement.
6.3 Exceptions. Downtime attributable to Scheduled Maintenance (as such term is defined in the Service Standards) of any portion of the eAsset Management Services or any hardware utilized by eOriginal in providing the eAsset Management Services shall not be deemed a breach of the warranties of Section 6.1 or 6.2 above. The foregoing warranties of Sections 6.1 and 6.2 above shall not apply in the following circumstances: (i) if the eAsset Management Services are used by Licensee or any User other than in material accordance with the User’s Guide or this Agreement; (ii) if the warranty breach is caused by, or is contributed to by, Licensee or any User; (iii) if the warranty breach is caused by software other than the Software or other software used directly by eOriginal in its provision of the eAsset Management Services, or by malfunction of hardware not provided to Licensee by eOriginal or otherwise used directly by eOriginal in its provision of the eAsset Management Services; (iv) to the extent the warranty breach is covered by Section 10.10 (force majeure); or (v) if the warranty breach is caused by communications or power failures not within eOriginal’s exclusive control. Licensee agrees that no warranties or representations regarding the eAsset Management Services or any eOriginal services are made other than those set forth in this Agreement, the Service Standards and the User’s Guide.
6.4 Licensee. Licensee warrants and covenants that it and its Administrative Users shall: (i) use the eAsset Management Services in compliance with the User’s Guide, this Agreement and all applicable federal and state laws, rules and regulations, including all applicable export laws; and (ii) not post, or provide for posting, on the eAsset Management Services any material that infringes the trademarks, copyrights or other intellectual property rights of third parties, or that violates a right of privacy or constitutes defamation. Licensee further warrants and covenants that it shall: (a) make no representation to Users or third parties regarding the eAsset Management Services that is not expressly made by eOriginal in this Agreement; (b) reasonably cooperate with eOriginal in its provision of the eAsset Management Services; and (c) have sufficient rights and licenses to all software Licensee is required to provide or license under this Agreement (other than the Software) and all portions of Licensee’s systems, software and website (other than the eAsset Management Services) to allow eOriginal to perform the eAsset Management Services.
6.5 Licensee Marketing Assistance. Licensee shall: (i) cooperate with eOriginal in jointly developing and issuing a press release announcing the parties’ relationship and the business value of the eAsset Management Services; (ii) act as a business reference for eOriginal products and services not more than once per month; and (iii) assist in the preparation of step-by-step documentation of Licensee’s transition to the eAsset Management Services for inclusion in a business case study to be published and utilized for marketing purposes by either or both parties.
6.6 Disclaimer. eORIGINAL DOES NOT WARRANT THAT THE OPERATION OF THE eASSET MANAGEMENT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE eASSET MANAGEMENT SERVICES ARE PROVIDED “AS IS” WITHOUT FURTHER WARRANTY OF ANY KIND, AND ALL EXPRESS AND IMPLIED WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. SHOULD ANY COMPONENT OF THE eASSET MANAGEMENT SERVICES FAIL TO MEET THE FOREGOING WARRANTIES, LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO SUCH FAILURE, AND eORIGINAL’S SOLE OBLIGATION, SHALL BE, AT eORIGINAL’S OPTION, TO BRING THE PERFORMANCE OF THE eASSET MANAGEMENT SERVICES INTO SUBSTANTIAL COMPLIANCE WITH SUCH WARRANTIES OR TO REPLACE THE DEFECTIVE COMPONENT WITH A FUNCTIONALLY EQUIVALENT COMPONENT.
7.1 Events of Termination. Either party may terminate this Agreement or any Task Order at any time upon the giving of written notice in the event that the other party is in material breach of any provision of this Agreement or the Task Order, as applicable, provided that such party receiving the notice fails to cure the default specified therein within ten (10) calendar days of receipt if the breach constitutes failure to pay Fees, or within thirty (30) calendar days of receipt for all other breaches. Either party may elect not to renew this Agreement for an upcoming Subscription Term by the giving of written notice to the other party at least ninety (90) days before the start of such upcoming Subscription Term. This Agreement shall automatically terminate without notice or a right to cure upon any party’s assignment for the benefit of creditors or any commencement by or against Licensee or eOriginal of any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium.
7.2 Winding Down. Upon any termination of this Agreement other than due to nonpayment or a breach which compromises the integrity of the eAsset Management Services, Licensee may elect in writing prior to the effective date of termination to extend the termination date and continue using the eAsset Management Services for a period not longer than sixty (60) days from the original termination date (the “Winding Down Period“) solely for purposes of obtaining the remaining signatures on one or more Transactions which were already open and created using SmartSign Web as of the original termination date and for exporting fully executed Transactions from the eAsset Management Services. Licensee and Users may only use the eAsset Management Services for these limited purposes if they comply with the provisions of this Agreement and Licensee pays eOriginal all accrued and outstanding Fees and all fees in advance in connection with such continued use of the eAsset Management Services (at the rates then current under Section 5 of this Agreement). In no circumstance shall Licensee or any User use the eAsset Management Services during the Winding Down Period to create new Transactions or for appending the first signature to any Transaction. If Licensee properly elects to wind down in accordance with this Section 7.2, this Agreement shall automatically terminate at the end of the Winding Down Period.
7.3 Consequences of Termination. Termination by either party shall effect a termination of only the Task Order(s) designated in the notice of termination, unless the notice expressly states that the party wishes to terminate this Agreement. Termination of this Agreement shall effect an immediate termination of all Task Orders. Upon any termination of this Agreement, eOriginal shall remain entitled to receive payment of all Fees incurred up to and including the effective date of termination.
7.3.1 Upon the later of the effective date of termination of this Agreement or the day after the close of any applicable Winding Down Period:
(i) Licensee shall promptly notify all Users of the termination of the eAsset Management Services and, upon Licensee’s payment of eOriginal’s Fee for such services at its Time and Materials Rate and Licensee’s payment of all accrued and outstanding Fees, all Transactions maintained by eOriginal on Licensee’s behalf in providing the eAsset Management Services shall be, at Licensee’s reasonable election:
(A) transferred to another storage facility outside of eCore; or
(B) rendered as paper documents and delivered to Licensee; or
(C) handled in a manner that is mutually agreed between Licensee and eOriginal; and
(ii) the license and right to use of, and access to, the eAsset Management Services by Licensee and all Users shall immediately cease and Licensee shall immediately return to eOriginal all components of the eAsset Management Services, specifically including and not limited to the User’s Guide and Software (if in the custody, possession or control of Licensee), destroy and purge all copies of such components and, at eOriginal’s request, provide to eOriginal a written certification of Licensee’s compliance with this Section 7.3.
7.3.2 In the event that Licensee fails to respond within sixty (60) days of the date of eOriginal’s notice of its fee for handling transition of all Transactions maintained by eOriginal on Licensee’s behalf in providing the eAsset Management Services, eOriginal may destroy all such Transactions, at its election, upon written notice to Licensee and Licensee shall remain liable to eOriginal for all Fees accrued for continued maintenance of such Transactions on the eAsset Management Services through the date of destruction.
7.4 Survival. The following Sections shall survive any termination or expiration of this Agreement (or any Task Order), in full force and effect to the extent so provided therein: Sections 5 (to the extent of all Fees and interest due), 6.6, 7, 8, 9 and 10.
- Proprietary Rights.
8.1 Confidentiality. Each party agrees to hold all Confidential Information of the other party in confidence and not to, directly or indirectly, copy, reproduce, distribute, duplicate, reveal, report, publish, disclose, cause to be disclosed or otherwise transfer such Confidential Information to any third party or utilize such Confidential Information for any purpose other than as expressly contemplated by this Agreement. Each party will use at least the same degree of care to prevent disclosing to third parties the other party’s Confidential Information as it employs to avoid unauthorized disclosure, publication or dissemination of its own information of a similar nature, but shall use no less than reasonable care; provided, however, that a party may disclose such information to persons or entities performing services required hereunder or otherwise performing services related to such party’s business operations where the disclosure is to those of the recipient party’s employees or agents who have a need to have access to such information in connection with their employment or engagement, so long as such party requires that each such third party owe a duty of confidentiality to such party, or have executed a confidentiality agreement containing terms and conditions, at least as protective of the Confidential Information as those set forth in this Section 8.1, and provided further that such disclosing party will remain responsible for any further disclosures or uses of Confidential Information by such third parties as if they were the actions of the disclosing party itself. Upon the termination of this Agreement, each party shall return or destroy, as the other party may direct, all documentation in any medium that contains, refers to, or relates to the Confidential Information of the requesting party, except that the attorney for the other party may retain, for archival purposes only, one (1) copy of such materials excluding the Software, which copy, notwithstanding the following sentence, shall remain subject to the obligations of this Section 8.1 for as long as such information is maintained. The confidentiality obligations of the parties under this Section 8.1 shall apply for five (5) years following the termination of this Agreement and, as to all Confidential Information which constitutes trade secrets under applicable law, for so long as such Confidential Information remains protected as a trade secret under applicable law.
8.1.1 Definition of Confidential Information. Except as otherwise specifically agreed in writing by the Parties, “Confidential Information” shall include, and is not limited to: the terms and conditions of this Agreement, a party’s customer lists, employee or agent information, User information, financial and statistical information, pricing information, product and service development information, software (including the Software), systems (including any configurations or designs thereof), processes, formulae, inventions, discoveries, pending patent applications and patentable ideas, any other technical information or schema, and any other information regarding any aspect of such party’s operations or corporate strategy, regardless of the form of such information, any information or data that is marked as confidential, and all other confidential, proprietary or trade secret information disclosed by such party, in writing or otherwise, that should reasonably be understood to be confidential. All Confidential Information shall remain the sole and exclusive property of the disclosing party and except as specifically set forth in this Agreement: (i) no license or other right to such Confidential Information or either party’s intellectual property is granted or implied hereby; and (ii) all Confidential Information is provided on an “AS IS” basis, and no representation, warranty, assurance, or guarantee is made by the disclosing party with respect to the accuracy, performance, completeness, or suitability of the Confidential Information or non-infringement of third-party rights based on use of the Confidential Information by the receiving party.
8.1.2 Exceptions. Confidential Information shall not include any information which a party can show: (i) was in the public domain at the time of disclosure through no fault of such party; (ii) is published or otherwise becomes part of the public domain through no fault of such party; (iii) was rightfully already known by, or in the possession of, such party without obligation of confidentiality or other restriction at the time of disclosure; (iv) was disclosed, without restriction, by a third party who rightfully received such information and had a lawful right to disclose such information; or (v) was independently developed by such party without reference to, or use of, Confidential Information of the other party. In addition, a party shall not be considered to have breached its obligations under Section 8.1 for disclosing Confidential Information to the extent such disclosure is required to satisfy any legal requirement of a competent court or governmental authority (including any state or federal regulatory agency having oversight of a party), provided that, promptly upon receiving any such request, such party notifies the other party prior to making such disclosure to allow such other party to take such action as it deems appropriate to protect the Confidential Information, and reasonably cooperates with such other party (if requested by such other party), at such other party’s expense, in taking such actions.
8.1.3 Nonpublic Personal Information. If and to the extent that eOriginal’s performance of this Agreement allows it access to, or disclosure of, Nonpublic Personal Information received from or on behalf of Licensee, as such term is defined in the Gramm-Leach Bliley Act and its implementing regulations, as amended and in effect, (“NPI“):
(i) eOriginal shall protect the security and confidentiality of the NPI as required by applicable law and Licensee’s privacy policies as provided to eOriginal in writing, and the NPI shall be deemed Confidential Information under this Agreement; and
(ii) eOriginal shall maintain appropriate standards relating to administrative, technical, and physical safeguards in compliance with applicable federal and state regulations to insure the security and confidentiality of the NPI, to protect against any anticipated threats or hazards to the security or integrity of the NPI; and to protect against unauthorized access to or use of the NPI which could result in substantial harm or substantial inconvenience to Licensee, including, but not limited to, restricting access to the NPI to those employees and agents of eOriginal who need such information to carry out the purposes for which the NPI was disclosed to eOriginal.
8.2 Intellectual Property.
8.2.1 Pre-Existing Intellectual Property Rights. Except as expressly set forth herein, nothing in this Agreement creates, or is intended to create, any right, title or interest for the benefit of one party in the intellectual property rights of the other party. Unless otherwise provided elsewhere in this Agreement or an Task Order, any developments and/or enhancements of a party’s pre-existing products or intellectual property rights and interests by that party or jointly with the other party will be solely owned by that party, and the other party shall have no interest or right to such developments or enhancements and hereby assigns to that party any and all rights it may have therein.
8.2.2 The eAsset Management Services. The eAsset Management Services and all components thereof, including without limitation, the Software and the User’s Guide, and the patents and other intellectual property rights related thereto, and any upgrades, modifications, adaptations, derivative works and enhancements to such materials, shall be and remain the property and Confidential Information of eOriginal and/or its applicable third party vendors; provided however that eOriginal shall not acquire through this Agreement any ownership interest in NPI, Licensee’s Transactions, Confidential Information or any portions of Licensee’s software, systems or website not consisting of the eAsset Management Services. Licensee and Users shall have no right, title or interest in any such materials, except to the extent of the license granted hereunder, and all such rights not expressly granted herein are reserved to eOriginal.
8.3 Marking. Neither party shall use the other party’s name or trademarks without the express written consent of such other party; provided however that either party may use the other’s name and associated logo in a list of clients on its website and in pre-approved press releases and other marketing materials. Additionally, the eAsset Management Services shall bear certain marks of eOriginal (the “Marks“). Subject to the terms and conditions of this Agreement, eOriginal grants Licensee a limited non-exclusive, non-transferable license to insert and maintain the Marks within Licensee’s websites and related marketing materials to indicate that the eAsset Management Services are provided by eOriginal. Licensee acknowledges that the Marks and all other trademarks and logos displayed on the eAsset Management Services are trademarks of eOriginal or its applicable vendors, and that this Agreement grants to Licensee no proprietary rights in, or any right to modify or alter, any such Marks, trademarks or logos.
- Indemnification; Limits of Liability.
9.1 Obligations of Licensee. Provided that eOriginal has complied with Section 9.3, Licensee shall indemnify and hold eOriginal harmless from and against all damages, losses and expenses that arise from any third party claim that Licensee or any User failed to comply with the terms of this Agreement or otherwise failed to use the eAsset Management Services in accordance with the terms and conditions of the User’s Guide and/or this Agreement.
9.2 Obligations of eOriginal.
9.2.1 Infringement. Provided that Licensee has complied with Section 9.3, eOriginal will indemnify, defend and hold harmless Licensee from and against any third party action brought or threatened against Licensee to the extent that such action is based on a claim that the eAsset Management Services infringe a United States patent, copyright, trademark or trade secret, or any other intellectual property right recognized in the United States (collectively, “Infringement Claims“); except to the extent the infringement results from: (i) breach of this Agreement or the User’s Guide by Licensee or any User; (ii) information added to or posted via the eAsset Management Services by Licensee or any User (in which case, eOriginal reserves the right, without liability to Licensee or any User, to immediately remove such allegedly infringing information from the eAsset Management Services); or (iii) the use of the eAsset Management Services in connection or in combination with equipment, devices or software of Licensee, any User or third party other than those certified by eOriginal in the User’s Guide as compatible with the eAsset Management Services. Additionally, if any component of the eAsset Management Services is, or in eOriginal’s good faith judgment likely to become, the subject of an Infringement Claim, eOriginal, at its expense and without prejudice to the right of indemnification provided in this Section 9.2.1, shall use commercially reasonable efforts to procure for Licensee and Users the right to continue using such component or replace or modify it to make its use hereunder non-infringing, provided such replacement is functionally equivalent. If neither option is reasonably practicable within ninety (90) days in eOriginal’s good faith judgment, eOriginal shall so notify Licensee, and Licensee and Users shall cease use of such component and, if applicable, return it to eOriginal. The obligations of this Section 9.2.1 shall be eOriginal’s sole obligations in the event of any Infringement Claim and Licensee and Users shall have no other recourse against eOriginal.
9.2.2 Performance. Provided that Licensee has complied with Section 9.3, eOriginal shall indemnify and hold Licensee harmless from and against all damage, loss or expense that arises from any third party claim that eOriginal failed to comply with the terms of this Agreement, and provided that such claim did not arise in any way from any of the following acts or omissions of Licensee or any User: (i) willful destruction of a document maintained by eOriginal in performing the eAsset Management Services; (ii) libel, slander or personal injury; or (iii) fraud, negligence, criminal or malicious act, or any violation of law.
9.3 Indemnification Procedures. The party seeking indemnification shall promptly notify the indemnifying party in writing of the claim and shall not compromise or settle such claim without written consent of the indemnifying party. The indemnifying party shall, upon payment of such indemnity, be subrogated to all rights of the indemnified party with respect to the claims and defenses to which such indemnification relates.
9.4 General Limitations of Liability. EXCEPT FOR CLAIMS INDEMNIFIED HEREUNDER AND MATERIAL BREACHES OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT,THE TOTAL LIABILITY OF eORIGINAL UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID TO eORIGINAL UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM. EXCEPT FOR CLAIMS INDEMNIFIED HEREUNDER AND FOR MATERIAL BREACHES OF SECTION 8.2, IN NO EVENT SHALL EITHER PARTY BE LIABLE IN ANY MANNER TO THE OTHER PARTY, OR TO ANY USER, OR ANY THIRD PARTY, UNDER THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LEGAL FEES AND EXPENSES OTHER THAN THOSE AWARDED UNDER SECTION 10.8 BELOW), INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO LOSS OF BUSINESS, PROFITS, ASSETS, INFORMATION, DATA OR DOCUMENTS, OR LOSSES ARISING OUT OF THE USE OR INABILITY TO USE THE eASSET MANAGEMENT SERVICES, WHETHER THE RELATED CLAIM IS UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
- Other Provisions.
10.1 Assignment; Beneficiaries. Neither party shall assign this Agreement or any part hereof or any benefit or interest herein or hereunder without the prior written consent of the other party; provided, however, that without the prior consent of the other party, either party shall have the right to assign this Agreement to any acquirer of all or substantially all of the assets or equity of such party; provided further, that in no event shall either party make any assignment to any competitor of the other party, as reasonably determined by such other party. In all cases, each party shall notify the other party prior to any such assignment. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. eOriginal and Licensee, and their permitted successors or assigns, are the sole intended beneficiaries of this Agreement, and no unintended beneficiary or third party shall have the right to sue on or enforce this Agreement. The parties agree that a party’s subcontractors and Users are not intended beneficiaries of this Agreement.
10.2 Relief. Each party acknowledges and agrees that any breach of the agreements and covenants contained herein would cause irreparable injury to the other party for which such other party would have no adequate remedy at law. In addition to any other remedy for which a party may be entitled, each party agrees that the other party may seek temporary and permanent injunctive and other equitable relief and specific performance which may be granted without obligation to post a bond or other security, and without proof of actual damages, irreparable injury or lack of remedy at law.
10.3 Consents. Where agreement, approval, acceptance or consent of either party is required by any provision of this Agreement, such action will not be unreasonably delayed, conditioned or withheld.
10.4 Relationship of Parties. Each party is acting only as an independent contractor to the other party. Notwithstanding any provision of this Agreement to the contrary, this Agreement establishes and shall only be construed as a contract between unrelated business entities for the provision of services and shall not be deemed to create a partnership, joint venture, agency or any other type of joint relationship.
10.5 Notice. Wherever under this Agreement one party is required or permitted to give notice to the other party, such notice shall be in writing and shall be delivered personally, sent by facsimile or electronic mail transmission or sent by nationally recognized express courier. Any such notice shall be deemed given when actually received. Either party may change its address for notices upon written notice to the other party in the manner provided above.
10.6 Severability. If any term of this Agreement is held to be illegal, unenforceable or void, then each other provision will remain in effect and the illegal, unenforceable or void provision will be amended to the extent required to make it legal and enforceable. If no such amendment is possible, then such term will be stricken from this Agreement and all other provisions will remain in full force and effect.
10.7 Waiver. The observance of any term of this Agreement may be waived, but such waiver shall be effective only if made in writing and signed by the party entitled to enforce such term. No delay or omission on the part of any party in exercising any right or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right or privilege under this Agreement operate as a waiver of any other right or privilege under this Agreement.
10.8 Governing Law. This Agreement will be governed by and construed in accordance with the laws, other than choice of law rules, of the State of Delaware and all applicable Federal laws of the United States. All disputes arising under this Agreement shall be brought in the State of Delaware. All disagreements or controversies of any kind, whether claimed in tort, contract or otherwise, concerning this Agreement or any other matter whatsoever between the parties (including any such matter as may relate to the enforceability or validity of any document) shall be brought within one year after the occurrence of the disagreement or controversy. All parties WAIVE THE RIGHT TO A JURY TRIAL on all matters arising out of or relating to the construction, performance or breach of this Agreement. In any litigation between the parties, the prevailing party shall be entitled to, and the court shall award, reimbursement of such party’s costs incurred, including and not limited to, reasonable attorney and expert fees.
10.9 Counterparts; Electronic Signatures. This Agreement may be executed using SmartSign Web or other agreed upon electronic signatures and in any number of counterparts, each of which shall be regarded as an original and all of which shall constitute but one and the same instrument.
10.10 Force Majeure. In the event a party’s performance of this Agreement or any part thereof (except for obligations to pay monies) shall be rendered impossible by or as a consequence of any law or any act of any government or political subdivision thereof having jurisdiction over such party, such party shall not be considered in default hereunder by reason of any failure to perform as a result. Any delays in or failure by either party hereto in the performance of any obligations hereunder (except for any obligation to pay money) shall be excused if and to the extent caused by occurrences beyond such party’s reasonable control, including acts of God, transportation conditions, strikes or other labor disturbances, war, whether declared or not, sabotage, or any other cause or causes which cannot be reasonably controlled by such party.
10.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, between the parties with respect to the subject matter hereof. There are no representations, understandings or agreements relating to this Agreement that are not fully expressed herein. This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of the parties to this Agreement. This Agreement also supersedes and controls over all conflicting, contradictory or inconsistent terms contained in any purchase order or other document submitted by Licensee at any time after full execution of this Agreement, whether or not such purchase order or other document is formally rejected by eOriginal. If a conflict arises between these Terms and Conditions, the Expert Services General Terms and the terms and conditions of a Task Order, the terms and conditions of the Task Order shall govern.
[End of Terms and Conditions]
Expert Services General Terms
- General. Capitalized terms shall have the meaning set forth in these Expert Services General Terms and in the Agreement. These Expert Services General Terms shall apply to all Task Orders (each a “Task Order“) entered into between eOriginal and the Licensee identified in the Agreement (as used herein, “Licensee”). Upon full execution of a Task Order, the Task Order shall be adopted and incorporated by reference into these Expert Services General Terms as Task Order-X (where X represents the number of the applicable Task Order).
- Scope of Work. In consideration of the Fees described in Section 7 of these Expert Services General Terms, eOriginal shall provide the Expert Services to Licensee and, if required by the applicable Task Order, shall produce the Deliverables, each as defined in the Task Order. All Expert Services, work and Deliverables, including, but not limited to, pre-existing materials, provided to Licensee under a Task Order shall be referred to as “Work Product“. Licensee acknowledges that eOriginal will perform the majority of the Expert Services at eOriginal’s corporate offices in Baltimore, MD.
- Change Management. If at any time during the term of a Task Order, should Licensee desire eOriginal to provide any additional services or change the Expert Services, eOriginal and Licensee agree that all such changes shall be mutually agreed to by written change order (a “Change Order“). Each Change Order duly authorized in writing by eOriginal and Licensee shall be deemed incorporated into and part of the applicable Task Order. eOriginal shall have no obligation to perform Expert Services other than those specified in a fully-executed Change Order or Task Order. Significant changes to the Expert Services made by Change Order may affect the Fees and may delay eOriginal’s delivery of the completed Work Product.
- Scheduling. Each Task Order shall state eOriginal’s estimate of the time frame within which the Expert Services described therein shall be performed. However, the schedule set forth in the Task Order is based upon the assumptions and requirements of these Expert Services General Terms and those stated in the applicable Task Order, as well as being contingent upon the negotiation and full execution of the Agreement and the applicable Task Order. Final timing of eOriginal’s delivery of the Work Product shall be re-calculated upon Licensee’s execution of the applicable Task Order and the Agreement. Promptly after receipt of such executed agreements, eOriginal shall notify Licensee in writing of the final Expert Services Schedule. Provision of the Expert Services shall begin on the Expert Services start date designated in the applicable Task Order. Unless otherwise stated in the Task Order, all Expert Services hours described in a Task Order are estimates, and the actual hours required to complete the Expert Services under any given Task Order may vary. Further, any change in Expert Services requirements made by Licensee may delay eOriginal’s delivery of the completed Work Product. Therefore, Licensee agrees to pay eOriginal Fees for all hours worked to provide the Expert Services, at the hourly rates set forth in the applicable Task Order.
- Project Management. Licensee will provide overall project management for the Expert Services under this Task Order. The Project Managers named on the Task Order will be assigned to act as a focal point for all Expert Services carried out under that particular Task Order. The parties’ Project Managers will be responsible for managing the progress of the Expert Services, including: (i) facilitating day-to-day communications between the parties, (ii) monitoring the schedules and progress of the Expert Services, (iii) receiving and submitting requests for information, resources and/or assistance, and (iv) facilitating, documenting, and communicating Expert Services’ status, action items and issues. Licensee’s Project Manager shall coordinate Licensee’s responsibilities under this Task Order and will be responsible for planning, coordination and scheduling. Further, Licensee’s Project Manager will provide continuity throughout the process to ensure Licensee’s goals and objectives are understood and are properly being addressed by eOriginal.
- Acceptance. Licensee shall accept or reject in writing the Work Product, or any portion thereof, within fifteen (15) business days of Licensee’s receipt of such Work Product. If Licensee fails to timely notify eOriginal of its acceptance of the Work Product, the Work Product or portion thereof, including and not limited to all Expert Services and applicable Deliverables comprised therein, shall be deemed accepted by Licensee. If Licensee timely rejects the Work Product, or portion thereof, in accordance with this Section 6, Licensee shall clearly state in writing the reasons for rejection. Within five (5) business days of notice of rejection, eOriginal shall present a corrective plan of action to Licensee. eOriginal shall then make the corrections and again submit the Work Product to Licensee for acceptance in accordance with the procedure in this Section 6.
- Service Fees.
7.1 Amount and Calculation. In consideration of the Work Product and the Expert Services, Licensee will pay to eOriginal the Fees in the amounts set forth in the applicable Task Order. The term “Fees” as used herein shall include eOriginal employees’ travel time and actual expenses incurred by eOriginal personnel in the provision of Expert Services to Licensee, including and not limited to hardware and software license purchases on behalf of Licensee, and eOriginal personnel travel expenses, meals, airfare, parking, ground transportation, tolls and lodging. Licensee shall reimburse eOriginal upon invoice for all such Fees incurred by eOriginal at Licensee’s request in the performance of a Task Order. The Fees as stated in the Task Order are based on the assumptions and requirements of the applicable Task Order and these Expert Services General Terms. Additionally, if Licensee cancels or postpones on less than three (3) business days’ notice any portion of the Expert Services to be performed at Licensee’s facilities, eOriginal may also charge Licensee Fees in the amount of all nonrefundable travel expenses incurred in connection with the cancelled Expert Services. The Fees set forth in a Task Order are fixed for the initial twelve (12) month term of such Task Order. eOriginal shall have the right to adjust any of the Fees for each subsequent twelve (12) month period during the term of such Task Order provided that the increase shall not exceed fifteen percent (15%) per annum. eOriginal shall notify Licensee of any such change in the Fees at least thirty (30) days before such change becomes effective.
7.2 Payment. Fees are due and payable within twenty (20) days after the date of each invoice. Licensee shall pay eOriginal interest at the rate of interest equal to one and one-half percent (1.5%) per month on all Fees not timely paid, calculated on a daily basis. All Fees due under this Agreement are net amounts to be received by eOriginal, exclusive of all taxes, duties, sales taxes, assessments and similar taxes, and are not subject to offset or reduction. If eOriginal is required to collect, remit or pay any federal, state or local taxes (such as sales, use, excise, added value or similar taxes and all customs, duties or governmental impositions) based on any products or services provided under this Agreement, the taxes shall be billed to and paid by Licensee. Licensee further agrees to indemnify and hold eOriginal harmless for all such taxes unpaid by Licensee. Alternatively, Licensee will provide eOriginal with a certificate acceptable to the taxing authority exempting Licensee from payment of these taxes. This Section shall not apply, however, to taxes based on eOriginal’s gross or net income or receipts, which shall be eOriginal’s sole responsibility.
- Covenants, Warranties and Remedy.
8.1 Cooperation. The availability and commitment of resources from both eOriginal and Licensee are vital to the successful execution of the Expert Services under a Task Order. These resources not only include personnel, but also include the hardware and software necessary to execute such Expert Services and provide the Work Product. Both parties shall make available the necessary resources in a timely manner to answer questions and support eOriginal’s provision of Expert Services under a Task Order.
8.2 Licensee. Licensee shall provide eOriginal with access to the worksite and other locations, and shall respond to questions and requests for information, as reasonably necessary for eOriginal to perform the Expert Services. Licensee represents that it has sufficient rights and licenses to all software and intellectual property rights Licensee is required to provide or license under the applicable Task Order (other than the Software) to allow eOriginal to perform the Expert Services and develop the Work Product.
8.3 eOriginal. eORIGINAL DOES NOT WARRANT THAT THE WORK PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS SET FORTH IN THE AGREEMENT, THESE EXPERT SERVICES GENERAL TERMS OR IN THE APPLICABLE TASK ORDER, THE EXPERT SERVICES AND WORK PRODUCT ARE PROVIDED “AS IS” WITHOUT FURTHER WARRANTY OF ANY KIND, AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING UNDER ANY APPLICABLE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, ARE HEREBY EXPRESSLY DISCLAIMED. EXCEPT AS EXPRESSLY SET FORTH HEREIN, eORIGINAL SHALL NOT BE LIABLE FOR THE QUALITY OR ACCURACY OF INFORMATION, SPECIFICATIONS OR DATA PROVIDED BY LICENSEE, NOR FOR ANY INACCURATE RESULTS ACHIEVED DUE TO eORIGINAL’S RELIANCE UPON ANY SUCH INACCURATE OR DEFECTIVE INFORMATION, SPECIFICATIONS OR DATA. SHOULD ANY COMPONENT OF THE EXPERT SERVICES OR WORK PRODUCT FAIL TO MEET THE FOREGOING WARRANTIES, LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO SUCH FAILURE, AND eORIGINAL’S SOLE OBLIGATION, SHALL BE, AT eORIGINAL’S OPTION, TO (i) REPERFORM THE EXPERT SERVICES OR (ii) REFUND TO LICENSEE ALL FEES PAID BY LICENSEE TO eORIGINAL FOR THE DEFICIENT EXPERT SERVICES AND/OR WORK PRODUCT.
- Term and Termination.
9.1 Term. The term of a Task Order shall commence on the Task Order Effective Date and shall continue until the earlier of: (i) Licensee’s acceptance of all Work Product delivered under the Task Order or (ii) the Task Order is terminated in accordance with the Agreement. In the event of termination of a Task Order by Licensee for Licensee’s convenience, Licensee shall pay all Fees incurred under such Task Order through the effective date of termination as well as all non-refundable travel expenses.
9.2 Effect of Termination. Termination by either party shall effect a termination of only the Task Order(s) designated in the notice of termination, unless the notice expressly states otherwise. Termination of the Agreement shall effect an immediate termination of all Task Orders. Upon any termination of a Task Order or the Agreement, eOriginal shall be entitled to payment of all Fees for Expert Services rendered through the effective date of such termination.
9.3 Survival. In addition to those provisions named in the Agreement, the following Sections of these Expert Services General Terms shall survive any termination or expiration of any Task Order or these Expert Services General Terms or the Agreement, in full force and effect to the extent so provided therein: Sections 7 (to the extent of all Fees and interest due), 8, 9, 10 and 11.
- Rights in Work Product.
10.1 Work Made for Hire. eOriginal acknowledges that the Work Product shall be deemed “work made for hire” upon eOriginal’s receipt of Licensee’s final payment of all Fees due under the Task Order under which such Work Product was prepared, and eOriginal agrees that Licensee shall then own all proprietary rights in and to such Work Product, excluding, however, all eOriginal Confidential Information, intellectual property and Software, and all modifications, enhancements, extensions and derivative works thereto, whether or not incorporated into the Work Product. Licensee hereby grants to eOriginal a royalty-free, non-exclusive, non-transferable (except in accordance with the Agreement), worldwide license to use the Work Product for business purposes and to develop, use, copy, display, market and license the Work Product and all concepts, ideas or processes conceived or developed in whole or in part while performing any of the Expert Services, including software that is identical, similar or related to that which was developed by eOriginal for Licensee, provided only that such Work Product, prior to any such display, use, marketing or distribution of the Work Product, concept, idea, process or commercialization of the same, will not contain Licensee’s Confidential Information, NPI nor Licensee’s pre-existing intellectual property. The Work Product shall be deemed to be “Confidential Information” in accordance with the Terms and Conditions and is proprietary to Licensee and eOriginal.
10.2 New Developments and Enhancements. Unless a separate written agreement or Task Order executed by the parties expressly provides otherwise:
(i) Any developments and/or enhancements based on a party’s pre-existing products or intellectual property rights and interests by that party (the “Originating Party”) or jointly with the other party will be solely owned by the Originating Party upon payment in full of all Fees due under the Task Order under which such developments and/or enhancements were prepared, and the other party shall have no interest or right to such developments or enhancements;
(ii) Any developments of new products or Work Product that are not covered by 10.1 or 10.2(i) above shall be owned solely by eOriginal, and Licensee shall have a perpetual, irrevocable, royalty-free, worldwide license to use, sell, transfer and prepare derivative works of such new products or work product without accounting to eOriginal for profits derived from such developments and/or enhancements. Licensee hereby irrevocably assigns, transfers and conveys to eOriginal any and all rights in the developments and/or enhancements in connection herewith and agrees that it will sign and cause to be signed all papers and do and cause to be done all acts which may be reasonably necessary, desirable or convenient to enable eOriginal, at eOriginal’s expense, to file and prosecute applications for any intellectual property rights created in accordance with this Agreement.
10.3 Limitations. All rights of use and ownership not expressly granted in these Expert Services General Terms, in the Agreement or in a Task Order are reserved to eOriginal. Notwithstanding anything to the contrary in these Expert Services General Terms, in the Agreement or in any Task Order, eOriginal will at all times have the right to freely utilize any general skills, ideas, concepts, know-how and techniques acquired or developed by eOriginal during the course of performing Expert Services under any Task Order. Nothing in this Section 10 modifies any license provisions in the Agreement or grants Licensee any right or license to any eOriginal Software or intellectual property, or shall be construed to broaden Licensee’s rights under the Agreement or any separate, written license or agreement with respect to any eOriginal Software or Work Product. Any update, version release, product release, maintenance release, patch or derivative work for a licensed Deliverable is subject to the license provisions governing such Deliverable. The provision of a subsequent Deliverable will not alter or extend any warranty applicable to any other Deliverable.
- Indemnification; Limits of Liability.
11.1 Indemnity. eOriginal will indemnify and defend Licensee from and against any third party action brought or threatened against Licensee to the extent that such action is based on a claim that any portion of the Work Product infringes a United States patent, copyright, trademark or trade secret, or any other intellectual property right recognized in the United States (collectively, “Infringement Claims“); except to the extent the infringement results from: (i) Licensee’s breach of the Agreement, these Expert Services General Terms or any license provisions applicable to such Work Product; (ii) the use of the Work Product in connection or in combination with equipment, devices or software of Licensee or a third party; (iii) failure to use corrections or enhancements to the Work Product which are made available to Licensee by eOriginal; or (iv) any fraud, negligence, criminal or malicious act, or any willful violation of law by Licensee. eOriginal will bear the expense of defending such claim and pay all damages and attorneys’ fees finally awarded by a court of competent jurisdiction which are attributable to such claim, provided that Licensee has complied with all conditions to indemnity set forth in the Agreement. Additionally, if any component of the Work Product is, or in eOriginal’s good faith judgment likely to become, the subject of an Infringement Claim, eOriginal, at its expense, shall use commercially reasonable efforts to procure for Licensee the right to continue using such component or replace or modify it to make its use hereunder non-infringing, provided such replacement is functionally equivalent. If neither option is reasonably practicable within ninety (90) days in eOriginal’s good faith judgment, eOriginal shall so notify Licensee, and Licensee shall cease use of such component and, if applicable, return it to eOriginal. The obligations of this Section 11.1 shall be eOriginal’s sole obligations in the event of any Infringement Claim and Licensee shall have no other recourse against eOriginal.
11.2 Limitation of Liability. EXCEPT FOR CLAIMS INDEMNIFIED HEREUNDER, THE TOTAL LIABILITY OF eORIGINAL FOR DAMAGES FROM ANY CAUSE OF ACTION WHATSOEVER RELATING TO OR ARISING FROM ANY TASK ORDER OR THE EXPERT SERVICES PROVIDED, OR WORK PRODUCT DELIVERED, THEREUNDER, WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE (INCLUDING ANY ACTION OR CLAIM ARISING FROM THE ACTS OR OMISSIONS, NEGLIGENT OR OTHERWISE, OF eORIGINAL), SHALL NOT EXCEED THE TOTAL FEES PAID UNDER THE APPLICABLE TASK ORDER FOR THE EXPERT SERVICES OR WORK PRODUCT GIVING RISE TO THE CLAIM.
11.3 Exclusive Remedy; Allocation of Risk. THE FOREGOING PROVISIONS OF THIS SECTION 11 AND OF SECTION 8.3 OF THESE EXPERT SERVICES GENERAL TERMS, AND ANY APPLICABLE PROVISIONS OF THE AGREEMENT, SET FORTH THE SOLE AND EXCLUSIVE REMEDY OF LICENSEE FOR ANY FAILURE OF THE EXPERT SERVICES, THE WORK PRODUCT OR ANY COMPONENT THEREOF. The parties expressly acknowledge that the limitations contained in these Expert Services General Terms and the Agreement represent the express agreement of the parties with respect to the allocation of risks between the parties under any Task Order, including the level of risk associated with the performance of such Task Order as related to the amount of the payments to be made to the parties for such performance. Each party fully understands and irrevocably accepts such limitation.
[End of Expert Services General Terms]