eOriginal, Inc. Terms and Conditions

Prior versions may be found here.

V20240813

These eOriginal Terms and Conditions (these “T&Cs”) apply to all use of the Services (as defined herein). By purchasing or using Services, Customer agrees to be bound by these T&Cs.

1. Definitions.

(a) “Additional Capacity” means those additional Transactions of a particular Transaction Type utilized by Customer in excess of the Committed Transaction Volume for such Transaction Type (and any prior-purchased Additional Capacity for such Transaction Type) purchased by Customer in such Order Form, in bundle increments of 1,000 Transactions, calculated as the number of bundles necessary to equal the previous calendar month’s usage, rounded up to the nearest 1,000.

(b) “Additional Capacity Rate” means the rate for Additional Capacity or other overage rate indicated in an Order Form. If no Additional Capacity Rate or other overage rate is indicated in an Order Form, the Additional Capacity Rate shall be 120%.

(c) “Affiliate” means the corporations or other entities controlling, controlled by or under common control with the referenced party. The term “control” as used in the preceding sentence means the right to exercise, directly or indirectly, more than 50% of the voting rights attributable to the shares of a corporation or the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the referenced party, whether through ownership of securities or partnership or other interests, by contract or otherwise.

(d) “Agreement” means (i) these T&Cs, (ii) all effective Order Forms, (iii) all addenda, Statements of Work, and externally referenced documents or information identified herein or in any effective Order Form, and (iv) any other written agreement entered into pursuant to any of the foregoing, each of which is expressly incorporated herein by reference. With respect to any Reseller Customer, (x) any of (ii)-(iv) entered into by Reseller and Customer and not by eOriginal are expressly excluded from the Agreement between eOriginal and Customer and remain part of the agreement between Reseller and Customer, and (y) by entering into an Order Form with Reseller, such Reseller Customer agrees to be bound by the terms of this Agreement with eOriginal with respect to the Services ordered by such Reseller Customer thereunder.

(e) “API” means the application program interface provided by eOriginal that permits access to certain Software functionality and includes the API access keys, instructions for use, data structures and other relevant documentation for accessing, interfacing with and using such functionality of the Software. A Professional Services consulting engagement is required to enable and support integration via API.

(f) “Applicable Law” means the federal or state laws, rules, regulations and orders that apply to either party in operation of its business and in light of the performance of obligations set forth herein. With respect to eOriginal, Applicable Law shall be limited to the United States of America.

(g) “Audit / Vendor Assessment Services” means those Services which consist of eOriginal’s participation and/or cooperation in Customer’s data security, business continuity, disaster recovery, technology infrastructure, controls, or books and records review, audit and/or assessment, as included in the level of such Services, or any upgrade thereof, purchased in an Order Form. The Services included in the levels of Audit /Vendor Assessment Services are more fully described in a Platform Services Exhibit.

(h) “Audit Trail” means the electronic record produced by the Software from metadata associated with either a Document or Transaction and representing the history of all Platform Services interactions with such Document or Transaction from its initial upload onto the Platform Service through the date an Authorized User requested to view the Audit Trail.

(i) “Authentication Services” means optional authentication services provided to Customer as part of the Platform Services in order to authenticate the identity of Authorized Users and signers utilizing an eOriginal Signing Tool.

(j) “Authorized User(s)” means those natural persons who are: (i) employees of Customer or a Customer Affiliate whom Customer registers to obtain access and use the Platform Services and use of one or more of Customer’s eVaults configured with a Transaction Type permitting such access; and (ii) Personnel of Customer or a Customer Affiliate that have a need for such read-only access for the verification, servicing, auditing or review of Customer’s Documents and Customer Data in such eVault(s) and that Customer registers to obtain “read only” access to the Platform Services, to the extent permitted by the configured Transaction Type. Authorized Users may not include employees or representatives of competitors of eOriginal.

(k) “Buyer” means an eAsset Management Transaction Type which may be configured to an eVault provisioned for Customer or a Customer Affiliate allowing Customer to receive, via functionality of the Software, executed Documents a Customer or a Customer Affiliate has purchased from a third party.

(l) “ClosingCenter” means eOriginal’s proprietary Software allowing Customer and/or entities and individuals designated by Customer to digitally sign Documents.

(m) “ClosingCenter – Paper Only” means an Origination Transaction Type which may be configured in the ClosingCenter, allowing Customer or a Customer Affiliate to enable Documents with the ability to be downloaded for printing and wet-ink signing. No Documents in the Closing Center – Paper Only Transaction may be enabled with the ability to be electronically signed.

(n) “ClosingCenter with eNote” means an Origination Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or a Customer Affiliate to upload an eNote or request the creation of an eNote by the Platform Services, into Transactions and to cause such eNote to be electronically executed through ClosingCenter including the use of Convert to Third Party Close. ClosingCenter with eNote includes integration for eNotes with the MERS eRegistry for registration of Documents qualifying for such registration under the rules of the MERS eRegistry.

(o) “ClosingCenter Hybrid with Paper Note” means an Origination Transaction Type which may be configured through ClosingCenter including the use of Convert to Third Party Close, allowing Customer or a Customer Affiliate to enable one or more Documents, excluding eNotes, with the ability to be electronically signed.

(p) “Committed Transaction Volume” means the total number of Transactions of a given Transaction Type which Customer has purchased within any applicable Scope of Use for use over the Term. Any references to “Purchased Capacity” shall be understood to be interchangeable with Committed Transaction Volume.

(q) “Confidential Information” means, with respect to a party hereto, all information or material that (i) is of a proprietary nature; or (ii) from all the relevant circumstances should reasonably be understood to be confidential, proprietary, or generally not available to the public (but excludes Customer Data which will be governed by subsection 2.3 and Statistical Data). Confidential Information of eOriginal includes, but is not limited to, the Services and the terms of the Agreement. Confidential Information does not include any information that is or becomes publicly available without breach of this Agreement or which the recipient (i) already possesses without obligation of confidentiality; (ii) develops independently without the Confidential Information of the other party, or (iii) rightfully receives without obligation of confidentiality from a third party.

(r) “Custodian” means an eAsset Management Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or a Customer Affiliate to receive Documents from another eVault provisioned for another customer of eOriginal where Customer is serving as a controller of Documents on behalf of such customer or an affiliate of such customer, to take custody and control of such Documents.

(s) “Customer” means the legal entity identified in an Order Form that is purchasing from eOriginal or a Reseller one or more Services, and/or ordering Transactions and/or eVaults for use with one or more Services, each as indicated in such Order Form. The term “Customer” as used herein includes Reseller Customers unless otherwise specified.

(t) “Customer Data” means all information, data, and any Documents or other content, that is uploaded to or stored on or generated through the use of the Platform Services by or on behalf of Customer. Customer Data does not include any Statistical Data or any data or information uploaded onto the Test Environment or Preview Environment of the Platform Services.

(u) “Data Security Addendum” means eOriginal’s data security and privacy obligations available at https://www.eoriginal.com/data-security-addendum, as updated by eOriginal from time to time.

(v) “Document” means a single electronic file or record in either pdf format or SMART Doc format (or such other electronic format that eOriginal implements as a replacement for pdf or SMART Docs, respectively) containing live data or information, which may constitute or reflect a real property mortgage note, a legal contract between two or more parties, or a notice, disclosure or other record.

(w) “Document Aggregation” means an eAsset Management Transaction Type which may be configured to an eVault provisioned for a Customer allowing Customer to receive Documents from another eVault previously provisioned to another eOriginal customer on behalf of Customer.

(x) “Documentation” means the then-current user manual, training manual, instructional or informational guide, and help system provided by eOriginal to Customer describing the functionality and proper use of the Software.

(y) “eAsset^® Management Transaction Type” means one of those Transaction Types known as Buyer, Custodian, Document Aggregation, Pledge/Collateralize, Securitization/Syndication, MBS Indenture Trustee, Mortgage Buyer/Investor, Mortgage Custodian, Mortgage Servicer, and Mortgage Warehouse Lender/Secured Party. Transactions of the eAsset Management Transaction Type are created in an eVault via functionality of the Software and may be applicable to eNotes. The eAsset Management Types do not allow for the origination of Documents.

(z) “eCore®” means the eOriginal proprietary electronic vaulting and transaction management Software.

(aa) “eDeposit and eAsset® Management” means an Origination Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or a Customer Affiliate to upload Documents for deposit into Transactions in an eVault, such Documents having been executed using either an eOriginal Signing Tool or a third-party electronic signature system, subject to approval by eOriginal and applicable Professional Services Fees.

(bb) “eNote” means a Document which consists of a promissory note in an electronic format, including without limitation SMART Doc and PDFs and which may or may not be registered to the MERS eRegistry.

(cc) “eOriginal” means eOriginal, Inc., a Delaware corporation.

(dd) “eOriginal Signing Tool” means one of the eOriginal proprietary electronic signature Softwares, eOriginal SmartSign® or SmartSign™ Plus, the functionality of which consists of: signing rule configuration and management of signature collection process, create Transactions, upload unexecuted Documents into such Transactions for execution and insert signature blocks, send notice to signers of Transactions ready for review and execution; and signers create their electronic signature, opt-in to electronic signature process, review Transactions and the unexecuted Documents therein, click to sign, and review/print/download executed Transactions.

(ee) “eSign” means an Origination Transaction Type allowing Customer to upload unexecuted Documents into Transactions and to cause such Documents to be electronically executed using eOriginal SmartSign®; provided however that eSign Transactions do not include management of such Transactions within eCore and are not executed nor managed by the Platform Services in a manner to establish the signed Documents created thereby as authoritative copies or transferable records under the Applicable Law.

(ff) “eVault” means a virtual electronic storage partition within eCore on the Production Environment of the Platform Services. Those virtual electronic storage partitions on the Platform Services’ eCore Test Environment or eCore Preview Environment shall be referred to herein as “vaults”.

(gg) “Fees” means all amounts due to eOriginal or a Reseller under all Order Forms with respect to any Services, eVaults or Transactions.

(hh) “Integration” means the API integration between any system or service of Reseller and an eVault on the Platform Services, enabled by the partnership between Reseller and eOriginal.

(ii) “MBS Indenture Trustee” means an eAsset Management Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or Customer Affiliate to receive Documents on behalf of a third party for whom Customer is serving as indenture trustee in a mortgage-backed securitization.The MBS Indenture Trustee Transaction Type does not include allowing Customer to serve as a financial custodian.

(jj) “MERS^® eDelivery” means a method for distributing Documents from one MERS eRegistry user to another which method is provided by MERSCORP Holdings, Inc.

(kk) “MERS^® eRegistry” means the system of record identifying the controller (holder) and location (custodian) for the authoritative copy of a registered SMART Doc eNote which system is owned and operated by MERSCORP Holdings, Inc.

(ll) “MERS^® Transaction Types” means the following Transaction Types: ClosingCenter – Paper Only, ClosingCenter with eNote, ClosingCenter Hybrid with Paper Note, MBS Indenture Trustee, Mortgage Buyer/Investor, Mortgage Custodian, Mortgage eDeposit and eAsset^® Management, Mortgage Servicer, and Mortgage Warehouse Lender.

(mm) “Mortgage Buyer/Investor” means an eAsset Management Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or Customer Affiliate to receive, via functionality of the Software, executed Documents a Customer or Customer Affiliate has purchased from or funded for a third party.

(nn) “Mortgage Custodian” means an eAsset Management Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or Customer Affiliate to receive and hold Documents on behalf of a third party for whom Customer is serving as a financial custodian.

(oo) “Mortgage eDeposit and eAsset® Management” means an Origination Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or Customer Affiliate to either (i) request the creation of an executable eNoteby the Platform Services, or upload a previously created eNote into a Transaction, and to cause such eNote to be electronically executed through a system other than the ClosingCenter; or (ii) upload an executed eNote into a Transaction.Mortgage eDeposit includes integration for eNotes with the MERS eRegistry for registration of Documents qualifying for such registration under the rules of the MERS eRegistry.

(pp) “Mortgage Servicer” means an eAsset Management Transaction Type which may be configured to an eVault provisioned on behalf of Customer, allowing Customer or Customer Affiliate to receive executed Documents via functionality of the Software for a third party where Customer is serving as a servicer (including Customers designated by such owner as “master servicer” or “subservicer”) on behalf of such third party or an affiliate of such third party, solely to perform servicing functions on such Documents.

(qq) “Mortgage Warehouse Lender” means an eAsset Management Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or Customer Affiliate to receive executed Documents from an eVault provisioned for a third party via functionality of the Software, such Documents being subject to a security interest of Customer or such Customer Affiliate.

(rr) “Order End Date” means the date set forth as such in an Order Form on which such Order Form expires, Services are no longer provided under such Order Form, and Transactions purchased in such Order Form are no longer available for use. If no Order End Date is stated in the Order Form, the Order End Date shall be the last day of the Term.

(ss) “Order Form” means a written order form or other agreement executed by Customer and eOriginal or a Reseller that specifies any applicable Scope of Use, Services, eVaults and/or Transactions ordered by Customer pursuant to these T&Cs and to be provided by eOriginal.

(tt) “Order Start Date” means the date set forth in an Order Form on which an Order Form becomes effective. If no Order Start Date is stated in the Order Form, the Order Start Date shall be the date the last party executes the Order Form.

(uu) “Origination Transaction Type” means one of those Transaction Types known as eSign, SmartSign Plus, eDeposit and eAsset Management, TOLEC In, Paper In, Mortgage eDeposit and eAsset Management, ClosingCenter with eNote, ClosingCenter Hybrid with Paper Note, ClosingCenter – Paper only. Origination Transaction Types includes the ability to manage the eNotes created by such Transaction.

(vv) “Paper In®” is an Origination Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or Customer Affiliate to upload Documents for deposit into Transactions in an eVault, such Documents having been executed using paper and ink, digitized, and subsequently converted from paper original document to digital original document.

(ww) “Per Transaction Rate” means that amount, on a per Transaction basis, designated in an Order Form to be paid for use of a given Transaction Type in connection with the Platform Services purchased in such Order Form.

(xx) “Permitted Unavailability” means Platform Services unavailability resulting from any one or more of the following: (i) Scheduled Maintenance; (ii) acts or omissions of Customer, its Affiliates, or their Authorized Users or Personnel; (iii) any events outside of eOriginal’s reasonable control, including and not limited to communications or power failures and force majeure; (iv) delay or failure to comply with the Agreement by Customer, its Affiliates, or their Authorized Users or Personnel; (v) failure or malfunction of any software, network or equipment owned by Customer, its Affiliates or any Authorized User, Personnel, or any third party or otherwise beyond the point where data leaves the data center network at a core or edge router and the comparable reverse path; (vi) packet loss or substantial in-network packet latency; and (vii) unavailability arising from a Customer or Authorized User service request.

(yy) “Personnel” means an agent, subcontractor or contractor of the applicable party and the employees of such agent, subcontractor or contractor.

(zz) “Platform Services” means eOriginal’s provision of access to Customer of the Software via software-as-a service at the level designated in an Order Form and any upgrades to such level purchased in an Order Form or additions such as additional eVaults. The Services included in the levels of Platform Services are more fully described in this Agreement, including Exhibit A attached hereto and incorporated herein by reference.

(aaa) “Pledge/Collateralize” means an eAsset Management Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or Customer Affiliate to receive Documents from an eVault provisioned for Customer, such Documents being subject to a security interest of a third party.

(bbb) “Preview Environment” means, to the extent provided for a particular Platform Service, a multi-tenant, hosted environment of the Platform Services designated by eOriginal for Customer access to preview and test the next upcoming Version of the Software before such Version is migrated onto the Production Environment. Customer shall not upload Customer Data or Documents onto a Preview Environment, but may upload test, nonproduction data and documents.

(ccc) “Production Environment” means that separate online, multi-tenant, hosted environment of the Platform Services designated by eOriginal for Customer access to receive, upload and manage live Documents and Customer Data.

(ddd) “Professional Services” means those Services (other than the Platform Services, Support Services or Audit / Vendor Assessment Services) purchased by Customer in an Order Form and more fully described in one or more SOWs attached to such Order Form. Professional Services enable, support, enhance or expand Customer’s use of the Platform Services.

(eee) “Reseller” means the authorized reseller of the Platform Services having entered into an Order Form with Customer.

(fff) “Reseller Customer” means a Customer that has entered into an Order Form with or otherwise ordered Services from a Reseller.

(ggg) “Scheduled Maintenance” means support and maintenance on the Platform Services, backup and recovery of data, and loading or enhancement, patches, or bug fixes of the Platform Services’ software performed by eOriginal during the period between 12am and 6am Eastern Time each day.

(hhh) “Scope of Use” means any scope of use identified in an Order Form as associated with Platform Services, Transaction Types, and additional eVaults purchased under such Order Form. Modifications to the Scope of Use may incur additional Fees.

(iii) “Securitization/Syndication” means an eAsset Management Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or Customer Affiliate to receive Documents from another eVault provisioned for Customer, for the purpose of taking control of and managing in such eVault Transactions containing Documents which have been securitized or subject to syndication.

(jjj) “Services” means the provision or performance of any service that is set forth in an Order Form, such as Platform Services, Support Services, Authentication Services and/or Professional Services.

(kkk) “SmartSign™ Plus” means an Origination Transaction Type allowing Customer to upload unexecuted Documents into Transactions and to cause such Documents to be electronically executed using SmartSign Plus; provided however that SmartSign Plus Transactions do not include management of such Transactions within eCore and are not executed nor managed by the Platform Services in a manner to establish the signed Documents created thereby as authoritative copies or transferable records under the Applicable Law.

(lll) “Software”means, as applicable, eOriginal’s proprietary eCore®, ClosingCenter, eOriginal SmartSign®, and SmartSign™ Plus software programs, and their related user interfaces, as well as all eOriginal proprietary software otherwise offered via the Platform Services, and all and the patents, copyrights and other intellectual property rights related thereto, and all upgrades, modifications, adaptations, derivative works and enhancements to such property and materials. Software does not include functionality not purchased in an effective Order Form or any new functionality which is separately priced by eOriginal unless Customer executes an additional or replacement Order Form to license or access such additional or new functionality.

(mmm) “Statement of Work” or “SOW” means an addendum attached to an Order Form or other written agreement describing the deliverables, timing and scope of Professional Services purchased in such Order Form or otherwise. Any references to “Task Order” shall be understood to be interchangeable with “Statement of Work” and “SOW.”

(nnn) “Statistical Data” means any and all information reflecting the access or usage patterns of the Platform Services by or on behalf of Customer or any Authorized User and general information about Customer’s and its Authorized Users’ computer system from which the Platform Services is being accessed (for example, system configuration, type of internet connectivity, operating system, browser version), including any statistical or other analysis, information or data based on or derived from any of the foregoing; provided that such information has been anonymized so as to not identify Customer or any Authorized User.

(ooo) “Support Services” means the support provided in the level of Platform Services, or any upgrade thereof, purchased in an Order Form, which are more fully described in a Platform Services Exhibit.

(ppp) “Support Services Addendum” means the support services available at https://wolterskluwer.my.site.com/ComplianceSolutionsSupport/s/, which may be updated from time to time.

(qqq) “T&Cs” means these eOriginal, Inc. Schedule Terms and Conditions.

(rrr) “Technical Contacts” means those Authorized Users trained by eOriginal and designated by Customer as Customer’s sole contact persons for purposes of obtaining Support Services.

(sss) “Term” means the period an Order Form is effective and Services and eVaults shall be provided and/or Transactions may be used in connection with Services. The Term shall begin on the Order Start Date and end on the Order End Date, unless earlier terminated as provided herein.

(ttt) “Termination Event” means, with respect to any party and under the applicable bankruptcy or similar laws regarding insolvency or relief of debtors, (i) a trustee, receiver, custodian or similar officer is appointed for such party’s business or property, (ii) such party seeks to liquidate, wind-up, dissolve, reorganize, or otherwise obtain relief from its creditors, or (iii) an involuntary proceeding is commenced against such party, and the proceeding is not stayed, discharged or dismissed within thirty days of its commencement.

(uuu) “Test Environment” means, to the extent provided for a particular service, a separate online, multi-tenant, hosted environment of the Platform Services designated by eOriginal for Customer access to test the functionality of the current release of the Software running on the Production Environment. Customer shall not upload Documents or Customer Data onto the Test Environment, but may upload test, nonproduction data and documents.

(vvv) “TOLEC In” means an Origination Transaction Type which may be configured to an eVault provisioned for Customer allowing Customer or Customer Affiliate to upload documents from a Customer-controlled vaulting system for deposit into an eOriginal provisioned eVault.

(www) “Transaction” means a virtual folder on the Platform Services into which Customer may upload or receive one or more Documents, subject to the Transaction Type. Transactions are created by operation of the Software as more fully described in the particular Transaction Type. Each Transaction is billed on a stand-alone basis, regardless of whether there is a logical association between two Transactions. Any references to “Packages” and “eDeposits” shall be understood to be interchangeable with “Transactions.”

(xxx) “Transaction Type” means a type of Transaction that may be created on the Platform Services pursuant to the Agreement, each as defined herein. Each Transaction is configured as a single Transaction Type, which is either one of the Origination Transaction Types or one of the eAsset Management Transaction Types.

(yyy) “Update” means a release of the Software which is made commercially accessible by eOriginal to its clients, and which is identified in the release number as those digits after the second decimal point (e.g., Version 11.2.X).

(zzz) “Version” means a release of the Software which is made commercially accessible by eOriginal to its clients, and which is identified in the release number as those digits before the second decimal point (e.g., Version 11.2).

2. Access Rights and Licenses; Support Services.

2.1.Access Rights. The Platform Services and all Transactions and eVaults used in connection with the Platform Services are made available within the United States and Canada subject to the terms of this Agreement, including these T&Cs and all payment, usage, volume, Scope of Use, and other terms and conditions set forth in any applicable Order Form. Subject to the foregoing, the following non-transferable, non-sublicensable rights, are granted to Customer during the Term, solely for the internal business purposes of Customer and its Affiliates, to access those Services, eVaults and Transactions set forth in an Order Form subject to the Scope of Use, in each case subject to any applicable “read-only” Authorized User designations of Customer:

(a) For access to and use of eCore: Authorized Users of Customers that have purchased Basic, Standard or Premium level Platform Services in an Order Form are authorized to access, configure and use eCore via the Platform Services solely in connection with the receipt, transfer, storage, management and administration of Customer Data and those Transaction Types indicated in an Order Form and configured by eOriginal to one or more eVaults created pursuant to an Order Form (or available in the applicable edition of the Platform Services). Customer is expressly precluded from receiving or uploading into an eVault Transactions of a Transaction Type different than the Transaction Type configured by eOriginal to such eVault. All Transactions created (whether by receipt of transfer, origination, or other deposit or upload) in an eVault will incur the Per Transaction Rate corresponding to the Transaction Type configured by eOriginal to such eVault.

(b) For access to and use of All Origination Transaction Types. Authorized Users are authorized to log into the Platform Services and upload Documents and Customer Data into Transactions of the Origination Transaction Type indicated in an Order Form.

(c) For testing: Authorized Users are authorized to implement, configure, access and use with non-production, test data and documents the Test Environment and the Preview Environment of the Platform Services and to the extent set forth in effective Order Forms.

(d) For use of APIs: If Customer has purchased in an Order Form API integration Professional Services, Authorized Users are authorized to implement, access and use the APIs through API keys provided by eOriginal to implement, configure, access and use the Platform Services, solely with respect to the rights and licenses granted in 2.1(a) or 2.1(b) above (as applicable) with respect to Transactions consisting of the Transaction Type indicated in an Order Form and configured by eOriginal.

(e) For Documentation:Authorized Users may use, internally disclose, internally display, internally copy and internally reproduce the Documentation solely in connection with the authorized use of the Platform Services and/or APIs by Customer as set forth herein.

2.2. License and rights limitations. Except as expressly permitted by this Agreement, the rights and licenses granted herein by eOriginal do not grant Customer, any Affiliate of Customer, any Personnel or Authorized Users of either, or any third party any right to sublicense, distribute, reproduce, transfer or transmit any of the Platform Services, Transaction Types, eVaults, Software or Documentation, or any portion thereof. Customer shall not, and shall not permit its Authorized Users or any other natural person or entity to: (a) attempt, knowingly permit or encourage any other person or entity to copy, translate, decompile, decipher, disassemble, reverse engineer or otherwise decrypt or in any other manner discover the source code of, or other trade secrets from, 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, any Software or Documentation comprising the Platform Services, or any portion thereof; (c) use external programs to alter, edit or append records to the data files or other information maintained within the Platform Services; (d) sublicense, rent or otherwise allow use of the Platform Services, or any portion thereof, by third parties, or otherwise support the activities of Customer in any service bureau capacity; (e) allow any competitor of eOriginal access to the Platform Services or any Software; or (f) interfere with or disrupt the integrity, operation, or performance of the Platform Services or otherwise interfere with others’ use of the Platform Services, including by means of uploading onto the Platform Services any harmful computer code or code designed to circumvent security operations of the Platform Services.

2.3. Customer Data; Ownership and limitations. Nothing in the Agreement shall grant to eOriginal any ownership interest in any Customer Data or in any of Customer’s Documents or Confidential Information. Customer hereby grants to eOriginal the right to process, use, disclose, copy, modify, store, and access its Customer Data, Documents and Confidential Information solely to the extent necessary for eOriginal to provide the Services and as otherwise set forth in the Agreement. Such license includes the right to create the Audit Trail. For the avoidance of doubt, eOriginal may utilize Statistical Data for industry analysis, benchmarking, analytics, marketing, and other business purposes.

2.4. Support Services. To the extent eOriginal Support Services have been purchased in an Order Form, (i) Customer’s Technical Contacts will receive ongoing Support Services at the level purchased in an Order Form; (ii) Customer shall provide Platform Services support directly to Authorized Users other than Customer’s Technical Contacts; and (iii) all Technical Contacts shall follow all issue escalation procedures established in the Documentation. Support Services do not include support for any API scripts, utilities, or other software developed under a SOW or otherwise in the performance of Professional Services. Notwithstanding the Support Services Addendum, Platform Services Exhibit, or inclusion of any Support Services in any level of Platform Services, certain Resellers may provide first-tier support to Customers purchasing Services from such Reseller, in which case Customers will be directed to such Reseller for support services.

2.5. Professional Services. Customer acknowledges that eOriginal will perform any Professional Services remotely, unless otherwise indicated in any applicable SOW. Customer will provide overall project management for all Professional Services to ensure Customer’s goals and objectives are understood and addressed by eOriginal. eOriginal shall have no obligation to perform Professional Services other than those specified in an effective SOW. Any timelines for performance set forth in a SOW are estimates based on the assumptions of the SOW and Customer’s stated requirements. To the extent Customer provides its or its Affiliates trademarks (the “Branding Collateral”) to eOriginal for the purposes of branding certain features of the Platform Services, Customer hereby grants eOriginal a royalty-free, non-sublicensable, non-transferable (other than in accordance with Section 8.1) right and license to use, copy, distribute, display and modify the Branding Collateral in connection with any applicable Professional Services.

2.6. Third Party Software/Hardware/Services. Customer may wish to utilize third party software, services, equipment or hardware with the Services, such as the MERS eRegistry and MERS eDelivery or third-party notary services. Customer shall be solely responsible for selection of, procuring, compatibility of, and maintenance and support of, all such third-party products and services to ensure Customer’s access and effective use of the Services. Such third-party products and services are provided pursuant to the terms of the separate written agreement between Customer and such third party. eOriginal disclaims all responsibility and liability for any failure of such third-party products and services. eOriginal may provide new Versions of the Software to accommodate new versions or releases of those third-party products and services at eOriginal’s sole discretion.

3. Fees.

3.1. Direct Fees.

(a) eOriginal will invoice Customer for Fees due to eOriginal as provided in an Order Form and, unless otherwise stated in such Order Form, Customer will pay all invoiced Fees not subject to a dispute within twenty (20) days of the date of the invoice by wire transfer or Automated Clearing House (ACH) payments. Unless otherwise expressly stated in an Order Form, all Fees are invoiced in advance at the frequency indicated in an Order Form, and one-time Fees are invoiced on or about the Order Start Date. Customer will raise all disputes with any Fee stated in an invoice within twenty (20) days of the date of the invoice, and both parties will promptly confer to resolve such disputes. Undisputed Fees not timely paid (including any undisputed portion of an invoice subject to dispute) shall bear interest at the lesser of (i) 1.5% per month or (ii) the highest rate permissible under Applicable Law, and eOriginal may suspend access to the Platform Services until such amounts are paid in full by Customer.

(b) All Fees due under the Agreement are net amounts to be received by eOriginal, exclusive of all taxes, duties, sales taxes, levies, value-added taxes, excise taxes, assessments and similar taxes (other than eOriginal’s income and employment taxes) (the “Taxes”), and, unless otherwise expressly stated herein, are not subject to refund, offset or reduction. Customer is responsible for all Taxes now and hereafter levied which are associated with its purchase of, and payment for, all Services, eVaults, and Transactions and agrees to indemnify and hold eOriginal harmless for all such Taxes unpaid by Customer. If eOriginal is required by law to invoice or collect Taxes associated with Customer’s purchase of, or payment for, any Services, eVaults or Transactions, eOriginal will set forth the amount of such Taxes in its invoices and remit all such Taxes collected to the appropriate taxing authority. eOriginal may rely upon Customer’s address as set forth on an Order Form as Customer’s place of supply for purposes of taxation.

3.2. Reseller Fees. Fees due to Reseller under an Order Form shall be invoiced to Customer by Reseller under the terms of the applicable Order Form. Customer is responsible to make timely payment to Reseller, and Reseller is responsible to timely remit payment to eOriginal.

3.3. Excess Capacity Fees. If Customer creates Transactions in excess of any applicable Committed Transaction Volume, excess Transactions may be subject to additional Fees at the Additional Capacity Rate. Any Committed Transaction Volume expires at the end of the Term and shall not “rollover” to any future period beyond the Term.

4. Representations and Warranties; General Obligations; Disclaimer.

4.1. Customer. Customer represents to eOriginal that (a) the Agreement (including each Order Form) has been duly authorized and approved and is binding on Customer, (b) no consent or approval of any third party or a government agency is required to make the Agreement enforceable against Customer, (c) Customer will not violate Applicable Law or any contractual rights of a third party in the performance of its obligations herein and the provision of data and information to eOriginal; and (d) Customer shall not introduce into or deliver into the systems of eOriginal any virus, malware or other data or code (including Customer Data) that is invalid, illegal or that is intended to or does cause data loss or other damage to data (including Customer Data) or otherwise creates or allows unauthorized access to or interruption of the Platform Services.

4.2. eOriginal. eOriginal shall develop and upload onto the Platform Services new Versions of the Software as needed to maintain compliance with the warranties of this Section 4.2 during the Term.eOriginal represents to Customer that, during the Term: (a) to the extent Transactions of the SmartSign Plus Transaction Type are purchased, with respect to such Transactions, the Platform Services shall include functionality allowing Customer to comply with all applicable requirements of the Uniform Electronic Transactions Act, and the Electronic Signatures in Global and National Commerce Act, with respect to the creation and management of electronic signatures; (b) to the extent Customer affirmatively selects the option within SmartSign Plus to designate a particular Document as a “financial asset” and Customer has purchased eDeposit and eAsset Management Transaction Types to store such Document, with respect to such Document, the Platform Services shall include functionality allowing Customer to comply with all applicable requirements of the Uniform Commercial Code, the Uniform Electronic Transactions Act, and the Electronic Signatures in Global and National Commerce Act, with respect to the creation and management of electronic signatures, authoritative copies and transferable records; and (c) all Services will be provided by adequately trained and knowledgeable employees and Personnel, in a good, professional and workmanlike manner, and to generally accepted industry standards. Solely with respect to any applicable MERS^® Transactions indicated in an Order Form, (x) eOriginal will use commercially reasonable efforts to comply with all standards of The Federal National Mortgage Association and The Federal Home Loan Mortgage Corporation regarding Uniform eNote Instruments applicable to each SMART Doc created through use of the Platform Services; (y) the Platform Services shall include functionality, with respect to SMART Docs created using the Platform Services, or otherwise uploaded into an eVault, supporting registration on the MERS eRegistry of such SMART Doc upon full execution, MERS eDelivery, and MERS eRegistry change data or change status transactions; and (z) the Platform Services shall include functionality allowing Customer to comply with all applicable requirements of the Uniform Commercial Code, the Uniform Electronic Transactions Act, and the Electronic Signatures in Global and National Commerce Act, with respect to the creation and management of electronic signatures, authoritative copies and transferable records, to comply with the standards of The Federal National Mortgage Association and The Federal Home Loan Mortgage Corporation regarding Uniform eNote Instruments applicable to each SMART Doc created using or maintained on the Platform Services, and supporting registration on the MERS eRegistry upon full execution of such SMART Doc Documents and supporting MERS eRegistry change data and change status transactions with respect to such SMART Doc Documents.

Customer acknowledges that (i) the Platform Services may not comply with similar laws outside of the United States and (ii) the Platform Services may not comply with international laws regarding data privacy.

4.3. Data security; Access credentials. eOriginal maintains commercially reasonable information security measures and policies that are appropriate to the nature of and designed to safeguard the security of Customer Data against known or reasonably anticipated threats. eOriginal will comply with the Data Security Addendum and provide to Customer the Audit / Vendor Assessment Services in accordance with the level purchased in an effective Order Form. Customer covenants not to share, disclose or otherwise provide login access credentials to access or use the Platform Services, except to Authorized Users, and to promptly report to eOriginal any loss, misuse or unauthorized disclosure of such login access credentials. eOriginal shall not be liable for any data loss arising from Customer’s or any Authorized User’s loss of access credentials or any unauthorized use of the Platform Services caused by the acts or omissions of Customer or any Authorized User. eOriginal reserves the right to suspend access to any portion of the Platform Services by any Authorized User (or to require Customer to immediately suspend such access upon request) for material breach of the Agreement or if continued use presents a threat to the security or integrity of the Platform Services, the Customer Data, or Confidential Information, or a threat to other users of the Platform Services.

4.4. Disclaimer. CUSTOMER ACKNOWLEDGES THAT SECURITY SAFEGUARDS, BY THEIR NATURE, ARE CAPABLE OF CIRCUMVENTION AND THAT eORIGINAL DOES NOT AND CANNOT GUARANTEE THAT THE PLATFORM SERVICES, eORIGINAL’S SYSTEMS, AND THE INFORMATION CONTAINED THEREIN (INCLUDING CONFIDENTIAL INFORMATION) CANNOT BE ACCESSED BY UNAUTHORIZED PERSONS CAPABLE OF OVERCOMING SUCH SAFEGUARDS. EXCEPT TO THE EXTENT DIRECTLY CAUSED BY eORIGINAL’S BREACH OF SECTION 4.3, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, eORIGINAL SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY SUCH UNAUTHORIZED ACCESS, NOR SHALL SUCH UNAUTHORIZED ACCESS CONSTITUTE A BREACH BY eORIGINAL OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. eORIGINAL DISCLAIMS AND EXCLUDES ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. eORIGINAL DOES NOT WARRANT THAT ANY SERVICES WILL BE UNINTERRUPTED, THAT ITS USE OR OPERATION WILL BE ERROR OR DEFECT FREE, THAT THE PLATFORM SERVICES OR ANY COMPONENT THEREOF WILL ALWAYS BE ACCESSIBLE OR AVAILABLE OR THAT ALL PLATFORM SERVICES DEFECTS WILL BE CORRECTED. FURTHERMORE, eORIGINAL DOES NOT WARRANT THAT THE AUTHENTICATION SERVICES, TO THE EXTENT UTILIZED, OR ANY OTHER IDENTITY VERIFICATION ASPECTS OF THE PLATFORM SERVICES WILL BE ACCURATE AS TO THE AUTHENTICITY OF ANY PARTICULAR SIGNER. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE PLATFORM SERVICES, AND eORIGINAL WILL HAVE NO LIABILITY THEREFOR. THE WARRANTIES MADE BY eORIGINAL HEREIN DO NOT APPLY TO ANY APPLICABLE TEST OR PREVIEW ENVIRONMENT OF THE PLATFORM SERVICES, AND EACH SUCH ENVIRONMENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. eORIGINAL IS NOT AUTHORIZED TO PROVIDE TAX, ACCOUNTING, LEGAL, COMPLIANCE, INVESTMENT, OR OTHER PROFESSIONAL ADVICE. TO THE EXTENT THE SOFTWARE OR ANY SERVICES MAY SERVE AS A TOOL THAT MAY HELP CUSTOMER WITH ANY TAX, ACCOUNTING, LEGAL, COMPLIANCE, INVESTMENT, OR OTHER MATTERS, CUSTOMER IS SOLELY RESPONSIBLE TO DECIDE WHETHER ANY PRESENT OR FUTURE USE OF THE SOFTWARE OR SERVICES WILL HELP ACHIEVE SUCH PURPOSE, AND ALL SOFTWARE AND SERVICES PROVIDED BY eORIGINAL PURSUANT TO THIS AGREEMENT SHOULD NOT IN ANY CASE BE DEEMED OR UNDERSTOOD AS A RECOMMENDATION, ENDORSEMENT, DIAGNOSIS, GUARANTEE OR WARRANTY OR A SUBSTITUTE FOR PROFESSIONAL JUDGMENT. CUSTOMER SHOULD CONSULT WITH ITS OWN LEGAL AND/OR OTHER PROFESSIONAL ADVISORS. CUSTOMER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE USE OF AND ACTIONS TAKEN OR OMITTED BASED ON THE SOFTWARE OR SERVICES AND ANY AND ALL LIABILITY IN CONNECTION THEREWITH.

4.5. Remedy limitation. Except for Customer’s indemnification rights expressly set forth herein, Customer’s sole and exclusive remedy with respect to a breach by eOriginal of any of the representations, warranties or covenants herein shall be for eOriginal, at its option, to repair or re-perform the defective Service, or to replace the defective Service with a functionally equivalent service, at eOriginal’s cost. Notwithstanding the above, if this remedy limitation fails of its essential purpose, this remedy limitation shall be void.

4.6. Customer responsibilities. At all times during the Term, subject to Section 4.3 of these T&Cs, Customer may access its Documents and Customer Data on the Platform Services and retrieve copies of such at no additional cost. As between eOriginal and Customer, Customer has exclusive control over and responsibility for the content of each Document (including eNotes), regardless of whether such Documents have been created utilizing the Platform Services or outside of the Platform Services. All Documents uploaded or maintained on the Platform Services are maintained in encrypted form, and eOriginal has no access to or control over such Documents except to the extent access is requested in writing and made available by Customer to eOriginal. Customer is solely responsible for producing any of Customer’s Documents or Customer Data to any third parties, including copies thereof. Subject to mutual written agreement, eOriginal may provide Professional Services to assist Customer with any such obligations. Customer is further solely responsible to configure the Platform Services’ Software to determine how long any Document, Customer Data or any other records are required to be retained or stored under Applicable Law, and to direct and cause the destruction or export of any such Document or Customer Data from the Platform Services at such dates and times as Customer may determine appropriate. Customer is further solely responsible for determination of and compliance with all Applicable Law related to (i) obtaining the consent of signers and Authorized Users to use electronic signatures and records in connection with the Platform Services, and (ii) all Documents, records, notices, disclosures and other information obtained, maintained, provided, delivered or executed using the Platform Services, including the content and timing of presentation and delivery thereof,. Customer further represents that it has all necessary rights under Applicable Law to utilize Customer Data in conjunction with the Platform Services as contemplated by this Agreement. Customer agrees it is solely responsible for any and all actions taken by Authorized Users in connection with the Services.

4.7. Trademarks; No marking; References. Other than as expressly set forth herein, 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 listings on such party’s website and in other marketing materials to indicate that such other party is a client (or vendor) of such party. Customer acknowledges that any trademarks, logos, copyright designations, or other marks of eOriginal (the “Marks”) displayed on or in connection with the Services or Documentation are the property of eOriginal or its applicable vendors, and that the Agreement grants to Customer no proprietary rights in, or any right to modify or alter, any such Marks. In addition to the above, Customer shall, if requested by eOriginal: (i) cooperate with eOriginal in jointly developing and issuing a press release announcing the parties’ relationship and the business value of the Platform 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 Customer’s transition to the Platform Services for inclusion in a business case study to be published and utilized for marketing purposes by either or both parties.

4.8. Service Commitment. Subject to permitted unavailability, including unavailability due to scheduled maintenance, acts or omissions of customer, failure or malfunction of software, network, or equipment owned by Customer, Customer service requests, packet loss or substantial in-network packet latency, or other events outside of eOriginal’s reasonable control, the average availability of access to the Production Environment of the Platform Services, inclusive of all components such as hardware, core applications, power and data center network, will be Ninety-Nine Point Nine Percent (99.9%) over a calendar month.

5. Termination.

5.1. (a) Early termination. Either party may terminate this Agreement or any Order Form (i) if the other party materially breaches the Agreement or any Order and fails to cure such breach within 30 days of written notice thereof from the non-breaching party or (ii) a Termination Event occurs with respect to the other party. If a Termination Event occurs with respect to Customer, Customer agrees to use its best efforts to obtain court authorization, if required, to pay any and all Fees due to eOriginal hereunder.

(b) Discontinuation/Modification/Replacement of Platform Services. eOriginal reserves the right, in its sole and absolute discretion, to discontinue or modify the Platform Services or any component, feature, service (including Support Services) or content therein and related thereto, for any reason at any time by providing Customer with written notice. If the Platform Services are discontinued during the Term, then eOriginal will, in its discretion, either: (i) provide Customer with a pro-rata refund of pre-paid but unused Fees for the discontinued Platform Services and related Support Services, or (ii) provide Customer with access to a product or service having substantially similar functionality for the remainder of the then-current Term.

5.2. Transition rights. If Customer is unable to export, or otherwise use MERS eDelivery to transfer, all of its Documents and Customer Data from the Platform Services prior to the expiration or termination of this Agreement, so long as Customer has not materially breached the Agreement, Customer may elect in writing prior to the effective date of termination to continue using the Platform Services purchased in such Order Form for a period not longer than sixty (60) days from the original termination date (the "Winding Down Period"), solely for purposes of enabling or performing a transition to a new service provider, or otherwise removing all Customer Data and Documents from the Platform Services. Fees for eVaults, Audit / Vendor Assessment Services and Platform Services shall continue to be due and payable for Services utilized during the Winding Down Period on a pro rata basis. In no circumstance shall Customer use the Platform Services during the Winding Down Period to create or upload new Documents, for appending the first signature to any Document or to utilize any Transactions. If Customer properly elects to wind down in accordance with this Section 5.2, any applicable Order Form shall automatically terminate at the end of the Winding Down Period. Any assistance from eOriginal in removing or otherwise supporting Customer’s transition from the Platform Services, whether during a properly elected Winding Down Period or otherwise, will be considered Professional Services subject to mutual written agreement.

5.3. Effect of termination. Termination or expiration of an Order Form shall effect a termination of only the Services designated in such Order Form. Upon any termination or expiration of an Order Form, eOriginal shall remain entitled to receive payment of all Fees incurred up to and including the effective date of termination or expiration, and no refund, offset or reduction will be due to Customer. Termination or expiration of any single Order Form shall not effect a termination of the Agreement or any other portion thereof; however, the Agreement shall automatically terminate upon any termination or expiration of the last remaining effective Order Form. Subject to Section 5.2 above, upon the effective date of termination or expiration of an Order Form (including as extended by any Winding Down Period): (a) all licenses and rights to use and access the Services thereunder shall automatically terminate; (b) Customer and all Authorized Users shall cease all use of the Services thereunder; (c) eOriginal shall have the right (but not the obligation, except as set forth in Section 5.4) to permanently delete and destroy all Documents, Transactions and other data (including Customer Data) previously managed thereunder; and (d) subject to Section 5.2 above with respect to Documents and Customer Data on the Platform Services, each party shall return to the other, or permanently destroy, all Confidential Information of the other party, except as such Confidential Information may be retained in backup or archival storage (and in such case such Confidential Information shall remain subject to the provisions of Section 6).

5.4. Document retention; Audit Trails. eOriginal shall not be obligated to retain any Documents or Confidential Information of Customer after termination of the Platform Services related to such Documents or Confidential Information unless Applicable Law expressly requires eOriginal to do so. Notwithstanding any other provision in the Agreement, eOriginal may retain the Statistical Data and the Audit Trails created by the Platform Services. To the extent any such Audit Trails may contain Confidential Information of Customer, they shall remain subject to the confidentiality provisions of the Agreement.

5.5. Survival. Unless and to the extent otherwise specified herein, all terms of this Agreement which by their nature extend beyond its termination, remain in effect until fulfilled, and apply to respective successors and assigns including, without limitation, Sections2.3, 3 (to the extent Fees remain unpaid), 4.4, 4.5, 5.2, 5.3, 5.4, and 6 through 8.

6. Confidential Information.

6.1. Nonuse and Nondisclosure. Customer and eOriginal agree that during the Term and for five years thereafter, or for such longer period as may be required by Applicable Law, and, in the case of trade secrets, for as long as such information remains a trade secret under Applicable Law, all Confidential Information, shall be held in strict confidence by the other party, and will not be used other than as provided herein, including as necessary to provide the Services, and to restrict dissemination of such Confidential Information to only those affiliates, employees, third-party consultants, subcontractors, service providers, or other third parties who have a legitimate need to know such Confidential Information to perform the obligations under this Agreement; provided that each party shall remain liable for any unauthorized disclosure of the other party’s Confidential Information by any such third parties. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 6 if it affords the other party’s Confidential Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care).

6.2. Disclosure Required by Law. If the receiving party is required to disclose Confidential Information of the other party by law, by court order or by order of any governmental entity or administrative tribunal having jurisdiction over the receiving party, then the receiving party must, to the extent legally permitted, notify the disclosing party of any such requirement prior to disclosure in order to afford the disclosing party an opportunity to seek a protective order to prevent or limit disclosure, and the receiving party will reasonably cooperate with the disclosing party’s efforts to obtain such protective order.

6.3. Ownership. Each party acknowledges that, as between the parties, all Confidential Information it receives from the disclosing party, including all copies thereof in such party’s possession or control, shall be and remain the sole and exclusive, proprietary property of the disclosing party. Nothing in the Agreement grants to either party any right, title or interest in or to the other party’s Confidential Information.

6.4. Platform Services. The Platform Services and all components thereof, including without limitation, the Software, Transaction Types, eVaults, and the Documentation, and the patents, copyrights 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. Customer, Customer’s Affiliates and Authorized Users shall have no right, title or interest in any such eOriginal materials, except to the extent of the access rights granted hereunder, and all such rights not expressly granted herein are reserved to eOriginal. eOriginal encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to the Services (“Feedback”). Customer acknowledges and agrees that eOriginal may collect, use, disclose and otherwise exploit Feedback for any business purpose without restriction. Feedback shall not identify Customer, any Customer Affiliate, or any of Customer’s Authorized Users, or include any Customer Data.

7. Indemnification; Limits of Liability.

7.1. Customer. Customer will indemnify, defend and hold harmless eOriginal, eOriginal Affiliates, and its and their owners, employees, Personnel, directors, successors and assigns (the “eOriginal Indemnified Parties”) from and against any and all liabilities, damages, losses, costs and expenses associated with or incurred as a result of any third party claim, action or proceeding brought or threatened against any eOriginal Indemnified Party arising out of or relating to (a) the failure of Customer, any of their Personnel, or any Authorized User to comply with terms of the Agreement or otherwise use the Platform Services in accordance with the Agreement, or (b) the nature and content of the Customer Data or Documents maintained on the Platform Services.

7.2. Indemnification procedures. The eOriginal Indemnified Parties shall promptly notify Customer in writing of any claim for which indemnification is sought hereunder and shall not compromise or settle such claim without written consent of Customer. The Customer shall, upon payment of such indemnity, be subrogated to all rights of the eOriginal Indemnified Parties with respect to the claims and defenses to which such indemnification relates. Customer’s respective indemnification obligations above are conditioned on: (a) Customer being given full and complete control over the defense and settlement of the claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of the eOriginal Indemnified Party); and (b) the eOriginal Indemnified Party shall provide reasonable assistance in connection with the defense and settlement of the claim, as Customer may reasonably request.

7.3. Damages Exclusion. NEITHER eORIGINAL NOR ANY OF ITS AFFILIATES, DISTRIBUTORS, AGENTS, SUBCONTRACTORS, LICENSORS OR SUPPLIERS WILL HAVE ANY LIABILITY WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION DAMAGES FOR ANY BUSINESS INTERRUPTION, LOSS OF SALES, PROFITS, BUSINESS, GOODWILL OR DATA, OR FOR THE INABILITY TO USE THE SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FINES, COSTS, EXPENSES AND OTHER LIABILITIES, AND/OR THE SAME ARE REASONABLY FORESEEABLE.

7.4. Limitations of Liability. THE TOTAL LIABILITY OF eORIGINAL AND ITS AFFILIATES, DISTRIBUTORS, AGENTS, SUBCONTRACTORS, LICENSORS AND SUPPLIERS, ARISING OUT OF OR IN RELATION TO THIS AGREEMENTSHALL NOT EXCEED, IN THE AGGREGATE FOR ANY AND ALL CLAIMS UNDER OR IN RELATION TO THIS AGREEMENT, THE TOTAL FEES PAID BY CUSTOMER TO eORIGINAL OR BY RESELLER TO eORIGINAL WITH RESPECT TO eORIGINAL PRODUCTS OR SERVICES RECEIVED BY CUSTOMER IN THE TWELVE-MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST CLAIM OR CAUSE OF ACTION AROSE LESS AGGREGATE DAMAGES PREVIOUSLY PAID BY eORIGINAL OR ITS AFFILIATES.

7.5. Bargained for Exchange, Breadth of Claims and Disclaimers. The allocations of liability in this Section represent the agreed, bargained-for understanding of the parties and eOriginal’s compensation hereunder reflects such allocations. THE LIMITATIONS OF LIABILITY AND TYPES OF CLAIMS HEREBY LIMITED AND DISCLAIMED SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND ARE INTENDED BY THE PARTIES TO APPLY REGARDLESS OF THE FORM OF THE CLAIM OR ACTION (WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, STATUTE OR OTHERWISE), AND REGARDLESS OF WHETHER ANY LIMITED REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

7.6. Limitations Period. Any claim or cause of action arising under or otherwise relating to this Agreement, or any Order Form, SOW, or the Services or other subject matter hereof or thereof, must be commenced within one year from the date such claim or cause of action first arose.

8. Other Provisions.

8.1. Assignment; Beneficiaries. Customer may not assign or transfer this Agreement or any Order Form or any rights or obligations hereunder or thereunder without the prior written consent of eOriginal. Any attempted assignment by Customer in breach of this section shall be void and of no effect. Reseller, eOriginal and Customer, and their permitted successors or assigns, are the sole intended beneficiaries of the Agreement. The parties agree that a party’s Authorized Users, Affiliates, employees and Personnel are not intended beneficiaries of the Agreement.

8.2. Relief. Each party agrees that any actual or threatened breach by the other of its obligations under this Agreement may cause irreparable harm for which monetary damages are inadequate, and each party agrees that the other party may, in addition to any other remedies available at law, be entitled to seek immediate injunctive or other equitable relief restraining such actual or threatened breach, without the need to post any bond or show proof of any monetary damages.

8.3. Consents. Where agreement, approval, acceptance or consent of either party is required by any provision of the Agreement, such action will not be unreasonably delayed, conditioned or withheld.

8.4. Relationship of parties. Each party is acting only as an independent contractor to the other party. Notwithstanding any provision of the Agreement to the contrary, the 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, fiduciary, agency or any other type of joint relationship.

8.5. Notice. Wherever under the 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 electronic mail transmission or sent by U.S. First Class Mail or nationally recognized express courier, to the location set forth in the most recent effective Order Form, with respect to Customer, and to the following with respect to eOriginal:eOriginal, Inc., 250 W. Pratt Street, Suite 1400, Baltimore, Maryland 21201; Attn: Legal Counsel, [email protected], with a copy to [email protected] and [email protected]. Any such notice shall be deemed given when actually received (or refused), or in the case of uncertified and unregistered mail shall be deemed given upon five days following mailing. Either party may change its address for notices upon written notice to the other party in the manner provided above.

8.6. Severability. In the event that any provision of this Agreement is held to be illegal, or otherwise unenforceable, such provision will be severed, stricken and replaced with a legal and enforceable provision which most closely reflects the intent of the parties with respect thereto and the remainder of this Agreement shall continue in full force and effect.

8.7. Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

8.8. Governing law. This Agreement, and any disputes arising out of or related hereto, is governed by and shall be governed by and enforced in accordance with the laws of the State of New York, including its statutes of limitations, without regard to any law or statutory provision which would require or permit the application of another jurisdiction’s substantive law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each party agrees that it will bring any action or proceeding in connection with this Agreement exclusively in the state or federal courts located in New York, New York, and that it irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding and waives all objections to jurisdiction and venue of such courts. All disagreements or controversies of any kind, whether claimed in tort, contract or otherwise, concerning the 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 the lesser of the applicable statute of limitations or three (3) years after the occurrence of the disagreement or controversy. EACH PARTY KNOWINGLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL FOR ANY DISPUTE IN CONNECTION WITH 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.

8.9. Counterparts; Electronic signatures. Any Order Form may be executed using an agreed upon electronic signature tool 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.

8.10.Force majeure. Except for a party’s obligation to pay fees that are due, neither party will be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault, including but not limited to, acts of God, acts of government, flood, fire, pandemic, civil unrest or war, acts of terror, labor strikes (other than those involving the party’s employees), computer attacks or malicious acts, such as attacks on or through the Internet, or failures of service of any telecommunications or Internet service carriers or providers (a “Force Majeure Event”), in each case to the extent such failure or delay is caused by such Force Majeure Event. The party affected by the Force Majeure Event will (a) use reasonable efforts after the start of the Force Majeure Event to notify the other party in writing of the Force Majeure Event including the likely or potential duration, if known, and the effect on its ability to perform any of its obligations under the Agreement; and (b) use reasonable means to mitigate the effect of the Force Majeure Event on the performance of its obligations. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to the Force Majeure Event.

8.11.Export. Customer agrees to handle eOriginal’s Services in compliance with all applicable export controls and economic sanctions laws, including, without limitation, by not exporting or transferring the Platform Services to, using the Platform Services for the benefit of, or making the Platform Services available for use by any person or entity identified on, or otherwise subject to restrictions imposed by, the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals List or the U.S. Department of Commerce’s Bureau of Industry & Security’s Denied Persons, Entity, and Unverified Lists; located in any jurisdiction that is subject to comprehensive U.S. economic sanctions; or with whom U.S. persons are otherwise prohibited from engaging such transaction.

8.12.Entire agreement; Order of precedence. This Agreement, including its Schedules and exhibits, and all Order Forms executed between the parties and all documents expressly referred to in any of the foregoing, collectively constitute the entire agreement between eOriginal and Customer and supersede and extinguish all prior and contemporaneous agreements, understandings, representations, warranties, proposals and communications, whether oral or written, between the parties relating to the subject matter of this Agreement. Any purchase order, requisition, work order, request for proposal or other document or record prepared, issued or provided by or on behalf of Customer relating to the subject matter of this Agreement is for administrative convenience only and will have no effect in supplementing, varying or superseding any provisions of this Agreement, regardless of any acknowledgement thereof by eOriginal. In the event of any inconsistency or conflict between the terms and conditions of this Agreement and any Order Form, schedule, exhibit or other attachment, the order of precedence shall be as follows:first, any applicable Order Form or SOW; then, these T&Cs; lastly, any applicable schedule, exhibit or other attachment to this Agreement.

Exhibit A

Platform Services Exhibit

Platform Services Description

The level of Platform Services purchased by Customer is indicated in the Order Form.

All levels of Platform Services include hosting and maintenance of Documents and Customer Data on the Platform Services for the Term of the Order Form per the document storage definitions noted below. The levels of Platform Services also consist of the following:

* Higher level Services may be requested for additional Fees.

Note 1: Document storage is applicable to completed Transactions only; incomplete Transactions may be systematically purged on shorter durations.

Note 2: Unlimited storage applies only during the term of Order Form.

Audit / Vendor Assessment Services Description

Included in the Platform Services is the level of Audit / Vendor Assessment Services purchased by Customer as indicated in the Order Form.

All levels of Audit / Vendor Assessment Services include access to the online Customer Portal at all times during the Term of the Order Form which houses compliance policy documents.

The levels of Audit / Vendor Assessment Services also consist of the following:

* These Services are provided for additional Fees and may be included if Customer has purchased such Services in the Order Form.

**Full day assessments can be on-site or remote as agreed upon by both parties.

Audit / Vendor Assessment Services Limitations:

The following Services are available if Customer has purchased pursuant to an appropriate Statement of Work:

• Additional days may be added to the on-site visit at eOriginal’s office
• Additional questionnaires or additional questions in an annual questionnaire
• Additional conference calls
• Specialized employee or vendor training
• Other Customer-specific audit or assessment activities not included above or in an effective Order Form or Statement of Work

Support Services Description

Included in the Platform Services is the level of Support Services purchased by Customer as indicated in the Order Form.

All levels of Support Services include access to the online Customer Portal at all times during the Term of the Order Form. The following self-service resources and information are available to Customer on the Customer Portal:

• Platform Services’ Documentation and FAQs
• Instructional training videos on use of the Platform Services
• Support news and general announcements
• Scheduled Maintenance notices
• Release notes
• Support contact information, hours and schedule

The levels of Support Services also consist of the following:

*Support for new API integration to the Platform Services may be purchased in a Statement of Work for additional Fees.

**TAM services include: 

• Account review at Customer’s location once every 12 months
• Customer Advocacy
  • Proactive focal point into eOriginal business/technical experts and their extensive product and industry knowledge
  • Coordination of Platform Service utilization and support analysis for process and product improvement
  • Customer’s advocate for prioritization of feature requests into release cycle
• Best Practices & Education
  • Annual health-check of third party integrations and architecture review
  • Customized pre- & post-Software Version release reviews with consultation on new features which would benefit Customer’s use case
• Analytics & Measurement
  • Monthly support ticket and Support Services and Platform Services utilization and SLA satisfaction review
  • Quarterly executive review
  • Coordination of eOriginal Support Services Issue management, escalation and resolution (all tickets must still be reported to the Helpdesk)

Support Services Limitations:

Regardless of the level of Support Services purchased by Customer, the following limitations apply:

• The Support Services are provided assuming compliance with the Documentation and the terms and conditions of the Agreement by Customer and each Authorized User.
• eOriginal shall not be held liable for failure to fulfill its Support Services obligations if such failure is in any way due to tampering with equipment, failure to comply with the Agreement, or failure to comply with the Documentation by any person other than eOriginal.
• Services may be requested which are not included in the Support Services. Such additional services may be provided by eOriginal pursuant to a separately purchased Statement of Work at eOriginal’s then current Professional Services rates. Such additional services may consist of:

• Services to be provided on-site at Customer’s locations;
• Support diagnosing and/or addressing an issue that is not a defect in the Platform Services or which is otherwise outside of the Platform Services, including issues related to Customer’s systems or environments;
• Additional training; and
• Support in the integration or implementation of new Versions of the Platform Services.