eOriginal, Inc. Master Terms and Conditions (Updated December 13, 2021, for prior versions, click here.)
(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 indicated in an Order Form.
(c) “Affiliate”, with respect to a party to an Order Form, means a parent company that controls, a subsidiary that is controlled by, or a related entity that is under common control with, such party.
(d) “Agreement” means (i) these T&Cs, (ii) all effective Order Forms, and (iii) all addenda, Task Orders, and externally referenced documents or information identified herein or in any effective Order Form, each of which is expressly incorporated herein by reference.
(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. API access is licensed by Customer only through the purchase of Professional Services to enable and support integration via API.
(f) “Applicable Law” means the laws, rules, regulations and orders that apply in light of the performance of obligations set forth herein.
(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 an Order Form Addendum.
(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 signers utilizing eOriginal SmartSign®.
(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; (ii) Personnel of Customer or a Customer Affiliate that Customer registers to obtain “read only” access to the Platform Services, to the extent permitted by the configured Transaction Type; and (iii) Personnel of Customer or a Customer Affiliate that Customer registers to obtain access and use the Platform Services, to the extent permitted by the configured Transaction Type. Authorized Users may not include employees or representatives of direct competitors of eOriginal.
(k) “Buyer” means an eAsset® Management Transaction Type which may be configured to a Vault provisioned for Customer allowing Customer or a Customer Affiliate to receive Documents from a Vault provisioned for another customer of eOriginal, which Documents Customer or a Customer Affiliate has purchased from such other customer.
(l) “Buyer (Purchaser Agmt)” means an eAsset® Management Transaction Type which may be configured to a Vault provisioned for Customer, such Vault to receive Documents from another Vault provisioned for Customer or a Customer Affiliate, which Documents have been sold by Customer or the Customer Affiliate to an unrelated third party, and Customer or a Customer Affiliate shall act as servicer of the Documents for such unrelated third party after such sale. eOriginal requires that Customer establish a three party agreement (between Customer, eOriginal and the unrelated third party) to govern the management of Documents in such Vault.
(m) “Committed Transaction Volume” means the total number of Transactions of a given Transaction Type which Customer has purchased within the Scope of Use for use over the Term.
(n) “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.
(o) “Custodian” means an eAsset® Management Transaction Type which may be configured to a Vault provisioned for Customer allowing Customer to receive Documents from another Vault provisioned for another customer of eOriginal where Customer is serving as a financial custodian on behalf of such customer or an affiliate of such customer, to take custody and control of such Documents. The Custodian Transaction Type does not include Transactions for which Customer is serving as its own financial custodian or as financial custodian for a Customer Affiliate, division, line of business or department.
(p) “Customer” means the legal entity identified in an Order Form that is purchasing from eOriginal one or more Services, and/or ordering Transactions and/or Vaults for use with one or more Services, each as indicated in such Order Form.
(q) “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. Customer Data shall not include any data or information uploaded onto the Test Environment or Preview Environment of the Platform Services.
(r) “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.
(s) “Document” means a single electronic file or record in pdf format (or such other electronic format that eOriginal implements as a replacement for pdf) containing live data or information which may constitute or reflect a legal contract between two or more parties, or a notice, disclosure or other record.
(t) “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.
(u) “eAsset® Management Transaction Type” means one of those Transaction Types known as Lender (ECCA), Lender (no ECCA), Buyer, Buyer (Purchaser Agmt), Custodian, Servicer, Service Provider, and Securitization/Syndication. Transactions of the eAsset® Management Transaction Type are created in a Vault via receipt of transfer from another Vault using functionality of the Software.
(v) “ECCA” means Electronic Collateral Control Agreement, a multiparty agreement between eOriginal, Customer and/or certain Customer Affiliates, and a third party with an interest in the Documents held in a Vault, such as a secured party or a trustee. An ECCA governs control and Authorized User access and management rights with respect to all Documents within a single Vault.
(w) “eCore®” means the eOriginal proprietary vaulting and transaction management Software.
(x) “eDeposit and eAsset® Management” means an Origination Transaction Type which may be configured to a Vault provisioned for Customer allowing Customer or a Customer Affiliate to upload Documents for deposit into Transactions in a Vault, such Documents having been executed using a third-party electronic signature system.
(y) “eOriginal” means eOriginal, Inc.
(z) “eOriginal SmartSign®” means the eOriginal proprietary electronic signature Software, 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.
(aa) “eSign and eAsset® Management” means an Origination Transaction Type which may be configured to a Vault provisioned for Customer allowing Customer or a Customer Affiliate to upload unexecuted Documents into Transactions and to cause such Documents to be electronically executed using eOriginal SmartSign®.
(bb) “Fees” means all amounts due to eOriginal under all Order Forms with respect to Services, Vaults and Transactions.
(cc) “Lender (ECCA)” means an eAsset® Management Transaction Type which may be configured to a Vault provisioned for Customer allowing Customer or a Customer Affiliate to receive Documents from another Vault provisioned for Customer or a Customer Affiliate, pursuant to the terms of an ECCA, such Documents being subject to a security interest of a party to the ECCA.
(dd) “Lender (no ECCA)” means an eAsset® Management Transaction Type which may be configured to a Vault provisioned for Customer allowing Customer or a Customer Affiliate to receive Documents from a Vault provisioned for a different eOriginal customer, such Documents being subject to a security interest of Customer or such Customer Affiliate.
(ee) “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. If there is only one Order Form in effect as of the Order End Date, the Agreement shall expire.
(ff) “Order Form” means a written form executed by Customer and eOriginal that specifies the Services, Vaults and/or Transactions ordered by Customer pursuant to these T&Cs and to be provided by eOriginal.
(gg) “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.
(hh) “Origination Transaction Type” means one of those Transaction Types known as eSign and eAsset® Management, eDeposit and eAsset® Management, and Paper In.
(ii) “Paper In®” means one of those Transaction Types known as eSign and eAsset® Management, eDeposit and eAsset® Management, and Paper In.
(jj) “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.
(kk) “Personnel” means an agent, subcontractor or contractor of the applicable party and the employees of such agent, subcontractor or contractor.
(ll) “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 Vaults. The Services included in the levels of Platform Services are more fully described in an Order Form Addendum.
(mm) “Preview Environment” means, to the extent provided for a particular Platform Service, a separate online, 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.
(nn) “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.
(oo) “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 Task Orders attached to such Order Form. Professional Services enable, support, enhance or expand Customer’s use of the Platform Services.
(pp) “Scope of Use” means the scope of use identified in an Order Form as associated with Platform Services, Transaction Types, and additional Vaults purchased under such Order form.
(qq) “Securitization/Syndication” means an eAsset® Management Transaction Type which may be configured to a Vault provisioned for Customer allowing Customer or a Customer Affiliate to receive Documents from another Vault provisioned for Customer or a Customer Affiliate, for the purpose of taking control of and managing in such Vault Transactions containing Documents which have been securitized or subject to syndication.
(rr) “Service Level Addendum” means the committed levels of uptime and performance of the Software on the Production Environment of the Platform Services described at https://www.eoriginal.com/service-level-addendum/, as updated by eOriginal from time to time.
(ss) “Service Provider” means an eAsset® Management Transaction Type which may be configured to a Vault provisioned on behalf of Customer, in which Vault Customer agrees to authorize a third party to manage Transactions on behalf of Customer or a Customer Affiliate for some legal purpose (typically as a verification agent, collection agent or lawyer) other than as a servicer or financial custodian.
(tt) “Servicer” means an eAsset® Management Transaction Type which may be configured to a Vault provisioned on behalf of Customer, in which Vault Customer agrees to authorize a third party to manage Transactions on behalf of Customer or a Customer Affiliate as a servicer of Documents which are to be maintained in such Vault.
(uu) “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.
(vv) “Software” means, as applicable, eOriginal’s proprietary eCore® and eOriginal SmartSign® 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.
(ww) “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, RAM, CPU, 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.
(xx) “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 an Order Form Addendum.
(yy) “T&Cs” means these eOriginal, Inc. Master Terms and Conditions.
(zz) “Task Order” means an addendum attached to an Order Form describing the deliverables, timing and scope of Professional Services purchased in such Order Form.
(aaa) “Technical Contacts” means those Authorized Users trained by eOriginal and/or designated by Customer as Customer’s sole contact persons for purposes of obtaining Support Services.
(bbb) “Term” means the period an Order Form is effective and Services and Vaults 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.
(ccc) “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.
(ddd) “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. The terms “Transactions” and “Packages” may be used interchangeably.
(eee) “Transaction Type” means the type of Transaction that may be created on the Platform Services pursuant to the Agreement. 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.
(fff) “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).
(ggg) “Vault” 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”.
(hhh) “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).
- Access Rights and Licenses; Support Services.
2.1. Access Rights. The Platform Services and all Transactions and Vaults used in connection with the Platform Services are made available within the United States and Canada on the basis of a prepaid subscription which is limited by usage and volume, and which is subject to the Scope of Use and the restrictions of these T&Cs and the Order Form. If Customer desires to increase or otherwise modify the Scope of Use, a separate Order Form will be required and additional Fees will apply. Subject to the terms and conditions of the Agreement and eOriginal’s receipt of payment of applicable Fees, and to the extent expressly permitted by the Transaction Type(s) purchased by Customer in the Order Form, 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, Vaults and Transactions set forth in an Order Form subject to the Scope of Use:
(a) For access to and use of eCore: The rights in this Section 2.1(a) are granted to Customers having purchased Basic, Standard or Premium level Platform Services in an Order Form:
(i) Authorized Users 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 purchased in an Order Form and configured by eOriginal to one or more Vaults purchased in an Order Form (or available in the applicable edition of the Platform Services). Customer is expressly precluded from receiving or uploading into a Vault Transactions of a Transaction Type different than the Transaction Type configured by eOriginal to such Vault. All Transactions created (whether by receipt of transfer, origination, or other deposit or upload) in a Vault will incur the Per Transaction Rate corresponding to the Transaction Type configured by eOriginal to such Vault.
(ii) Customers are authorized to grant “read-only” access to those of Customer’s Personnel designated as Authorized Users to access the Customer’s Vault(s) via the Platform Service, where such Personnel have a need for such read only access for the verification, servicing, auditing or review of Customer’s Documents and Customer Data in such Vault(s).
(iii) Where permitted by the eAsset® Management Transaction Type configured to a Customer Vault, Customers are authorized to grant access to such Vault to those of Customer’s Personnel designated as Authorized Users to access such Vault via the Platform Service, where such Personnel have a need for such access to perform verification, servicing, auditing or review of Customer’s Documents and Customer Data in such Vault.
(iv) Customer is permitted to store those Transaction Types purchased in an Order Form (and the Documents and Customer Data therein) in those Vaults purchased in an Order Form and configured by eOriginal to maintain such Transaction Types, subject to the payment of the Fees for Platform Services required in such Order Form.
(b) For access to and use of Origination Transaction Types:
(i) eSign and eAsset® Management Transaction Type: In addition to the rights granted in 2.1(a) above (if applicable):
2.1.b.i.1. Authorized Users are authorized to log into the Platform Services and upload Documents and Customer Data into Transactions of the eSign and eAsset® Management Transaction Type purchased in an Order Form; and
2.1.b.i.2. Authorized Users and parties who are designated by the Customer to sign Documents are authorized to electronically sign unexecuted Documents uploaded into Transactions of the eSign and eAsset® Management Transaction Type.
(ii) All other Origination Transaction Types: In addition to the rights granted in 2.1(a) above (if applicable), Authorized Users are authorized to log into the Platform Services and upload Documents and Customer Data into Transactions of the Origination Transaction Type purchased in an Order Form, which Transactions are created in Vaults purchased in an Order Form (or available in the applicable edition of the Platform Services) and such Vaults are configured by eOriginal to maintain such Transaction Type. Each Origination Type Transaction is counted as a separate Transaction, regardless of whether there is a logical association between two Transactions (such as a loan application and completed loan agreement).
(c) For testing: In addition to the rights granted in 2.1(a) and 2.1(b) above (if applicable), 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 if 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 purchased 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. 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, Vaults, the Software or Documentation, or any portion thereof. Customer and Authorized Users shall not, and shall not permit any natural person or entity to: (a) 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, 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 or any Customer Affiliate 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. All Customer Data, Customer Confidential Information and the Documents, as between eOriginal and Customer, are the sole and exclusive property of Customer (or of Customer’s clients or Affiliates). Nothing in the Agreement shall grant to eOriginal any ownership interest in Customer Data, or in Customer’s Documents or Confidential Information. Customer hereby grants to eOriginal the right to process, use, disclose, copy, modify, store, and access the 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. Customer’s Technical Contacts will receive ongoing Support Services at the level purchased in an Order Form. Customer shall provide Platform Services support directly to Authorized Users other than Customer’s Technical Contacts. 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 Task Order or otherwise in the performance of Professional Services.
2.5. Professional Services. Customer may elect to receive Professional Services from eOriginal in connection with the Platform Services, which shall be provided subject to the Agreement, the Task Order, and the applicable Order Form ordering such Professional Services. Customer acknowledges that eOriginal will perform Professional Services remotely, unless otherwise indicated in a Task Order. Customer will provide overall project management for all Professional Services to ensure Customer’s goals and objectives are understood and addressed by eOriginal. Any changes to Professional Services must be mutually agreed and documented by written change order signed by the parties (“Change Order”). eOriginal shall have no obligation to perform Professional Services other than those specified in an effective Order Form, or a Change Order or Task Order attached to an effective Order Form. Any timelines for performance set forth in a Task Order are estimates based on the assumptions of the Task Order and Customer’s stated requirements. Unless otherwise stated in a Task Order, Customer agrees to pay Fees for all hours worked under such Task Order to provide the Professional Services, at the hourly rates set forth in the Task Order.
2.6. Third Party Software/Hardware/Services. Customer may wish to utilize third party software, services, equipment or hardware with the 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.
3.1. Generally. Unless otherwise expressly stated in the Order Form, all Fees are due and payable annually in advance during the Term by wire transfer or Automated Clearing House (ACH) payments, and the pricing thereof shall remain fixed during the Term of the particular Order Form. eOriginal will invoice Customer 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. Customer will raise all disputes with any Fee stated in an invoice within twenty (20) days of the date of the invoice, and shall pay all undisputed Fees in such invoice, and both parties will promptly confer to resolve such disputes. Undisputed fees not timely paid shall bear interest at the lesser of (a) 1.5% per month or (b) 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.
3.2. Taxes. 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, Vaults, 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, Vaults 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.
- Representations and Warranties; General Obligations; Disclaimer.
4.1. Customer. Customer represents to eOriginal that (a) the Agreement and each Order Form has been duly authorized and approved and is binding on Customer, (b) that no consent or approval of any third party or a government agency is required to make the Agreement or any Order Form enforceable against Customer, (c) that Customer will not violate any contractual rights of a third party, or of Applicable Law applicable to such party, in the performance of its obligations herein and the provision of data and information to the other party; 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) the Production Environment of the Platform Services shall be provided and maintained in accordance with the Service Level Addendum, (b) 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. Customer acknowledges that (a) the Platform Services may not comply with similar laws outside of the United States and (b) 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 the personally identifiable information and designed to safeguard the security of Customer Data and protect against known or anticipated threats to the security of Customer Data. eOriginal also covenants to comply with the Data Security Addendum and to provide to Customer the Audit / Vendor Assessment Services described therein 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 FOR THE REPRESENTATIONS, WARRANTIES AND COVENANTS IN THE AGREEMENT, THE PLATFORM SERVICES, SUPPORT AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. eORIGINAL DISCLAIMS AND EXCLUDES ANY AND, 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 THE TEST ENVIRONMENT OR THE 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, MEDICAL, COMPLIANCE OR INVESTMENT ADVICE. TO THE EXTENT THE eORIGINAL PRODUCT MAY SERVE AS A TOOL THAT MAY HELP CUSTOMER WITH ANY TAX, ACCOUNTING, LEGAL, MEDICAL, COMPLIANCE OR INVESTMENT MATTERS, CUSTOMER IS SOLELY RESPONSIBLE TO DECIDE WHETHER ANY PRESENT OR FUTURE USE OF THE eORIGINAL PRODUCT WILL HELP ACHIEVE SUCH PURPOSE AND ALL PRODUCTS 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 COMPLIANCE ADVISORS. CUSTOMER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE USE OF AND ACTIONS TAKEN OR OMITTED BASED ON THE eORIGINAL PRODUCT 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 in this Section 4 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 of an Order Form for the Platform Services, 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. 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 to determine whether a particular Document is subject to any Applicable Law or any exception to Applicable Law. During the Term of an Order Form for Platform Services, Customer is solely responsible for producing any of Customer’s Documents or Customer Data to any third parties, including copies thereof. Upon Customer’s request and a mutually agreed Task Order, eOriginal may provide Professional Services to assist Customer with its obligations. Customer is further solely responsible during the Term 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 during the Term for compliance with all Federal and State laws and regulations 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) the content of, and timing of presentation and delivery of, all Documents, records, notices, disclosures and other information provided, delivered or executed using the Platform Services. 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). Additionally, the Services and Documentation bear certain marks of eOriginal (the “Marks”). Customer acknowledges that the Marks and all other trademarks and logos displayed on the Services or Documentation are trademarks 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, trademarks or logos, or any copyright designations of eOriginal on or in the Services or the Documentation. 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.
5.1. (a)Early termination. No Order Form may be terminated or cancelled except in accordance with these T&Cs. Either party may terminate an Order Form for material breach of the other party of any term of the Agreement by giving written notice to the other party, which termination shall be effective on the date of such written notice unless the other party cures the material breach within (a) ten (10) calendar days of receipt of the notice if the breach constitutes failure to pay Fees, or (b) within thirty (30) calendar days of receipt of the notice for all other breaches. In addition to the above, eOriginal shall have the option to terminate the Agreement upon notice to Customer upon Customer’s assignment for the benefit of creditors or any commencement by or against Customer of any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium.
(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 failed to export all of its Documents and Customer Data from the Platform Services prior to the expiration or termination of an Order Form purchasing the Platform Services, and the termination of the Order Form was for reasons other than Customer’s material breach, Customer may elect in writing prior to the effective date of termination to extend the termination date and 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’s Documents and Customer Data from the Platform Services. Fees for Vaults, 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, the applicable Order Form shall automatically terminate at the end of the Winding Down Period. In the event that Customer fails to remove all of Customer’s Documents and Customer Data from the Platform Services by the end of the Winding Down Period, or in the event Customer is not entitled to elect the Winding Down Period, Customer may engage eOriginal prior to the end of the Term to perform such removal or to otherwise provide transition Professional Services at eOriginal’s then-current time and materials rates, additionally, eOriginal reserves the right to delete such data in accordance with Section 5.4.
5.3. Effect of termination. Termination by either party 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 under the terminated or expired Order Form shall automatically terminate; (b) Customer and all Authorized Users shall cease all use of the Services under the terminated or expired Order Form; (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 under the terminated or expired Order Form upon written notice to Customer; 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, and shall be deleted in the ordinary course of storage rotation).
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. The following Sections shall survive any termination or expiration of the Agreement, any Order Form or portion thereof in full force and effect, except to the extent such Section provides a limited period of survival: Sections 1, 2.3, 3 (to the extent Fees remain unpaid), 4.4, 4., 5.2, 5.3(c), 5.3(d), 5.4, and 6 through 8.
- Confidential Information.
6.1. Nonuse and Nondisclosure. Customer and eOriginal agree that during the term hereof and for five years after the expiration or earlier termination of this Agreement, or for such longer period as may be required by applicable law, regulation or rule, 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 or, except as provided below, made available or disclosed to any third party without the other party’s prior written consent. Each party also agrees to restrict dissemination of such Confidential Information to only those affiliates, employees, third-party consultants, subcontractors, or service providers, 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 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. Exceptions. Notwithstanding the above restrictions, neither party will have any restriction on use or disclosure of Confidential Information which (i) is now or subsequently enters the public domain through means other than disclosure by a party hereto in breach of the terms of this Agreement; (ii) is lawfully obtained from a third party without an obligation of confidentiality; (iii) is independently developed by such party without any use of or reliance upon any Confidential Information of the other Party; or (iv) is already lawfully in the possession of the receiving party prior to its disclosure by the disclosing party free of any obligation of confidence to the other party.
6.3. Disclosure Required by Law. If the receiving party is required to disclose Confidential Information 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.
6.4. 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.
6.5. Platform Services. The Platform Services and all components thereof, including without limitation, the Software, software, Transaction Types, Vaults, 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.
- 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 the eOriginal Indemnified Party arising out of or relating to (a) the failure of Customer or any Customer Affiliate, or 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 the claim and shall not compromise or settle such claim without written consent of Customer. 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 eORIGINAL 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 AGREEMENT, THE eORIGINAL SERVICES, AND ANY OTHER CAUSE WHATSOEVER, SHALL 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 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, Task Order, or the eOriginal 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.
- Other Provisions.
8.1. Assignment; Beneficiaries. Neither party shall assign the Agreement, any part hereof or any Order Form , or any part thereof, or any benefit or interest therein or thereunder 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 the Agreement or an Order Form to an Affiliate or to any acquirer of all or substantially all of the assets or equity of such party or in connection with a merger or other change of control. In all cases, each party shall notify the other party of any such assignment. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. eOriginal and Customer, and their permitted successors or assigns, are the sole intended beneficiaries of the Agreement, and no unintended beneficiary or third party shall have the right to sue on or enforce 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: General Counsel, [email protected], with a copy to [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 eOriginal SmartSign® 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.
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”). 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 the parties 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 Task Order; then, these T&Cs; lastly, any applicable schedule, exhibit or other attachment to this Agreement.