(Prior versions may be found here).
V211213
These eOriginal, Inc. Master Terms and Conditions – SmartSign Web Platform Services (the “T&Cs”) apply to Customer’s use of the Platform Services and any Services that are made the subject of an Order Form or Task Order. The Platform Services and other Services are provided by eOriginal, Inc. (“eOriginal“) and purchased by or licensed to Customer through execution of an Order Form with an authorized Reseller of the Platform Services, which Order Form adopts and incorporates these T&Cs. These T&Cs expressly supplement all terms and conditions of the Order Form and may not be modified or amended except with the express written consent of eOriginal. These T&Cs shall govern the provision and receipt of all Services and Signature Transactions of eOriginal ordered by Customer through Reseller.
- DEFINITIONS
1.1 “Affiliate” means, with respect to eOriginal or Customer, a parent company that controls, a subsidiary that is controlled by, or a related entity that is under common control with, such party.
1.2 “Agreement” means (i) these T&Cs, (ii) all effective Order Forms, (iii) all effective Task Orders, and (iv) all addenda, externally referenced documents or information identified herein or in any effective Order Form or Task Order, each of which is expressly incorporated herein by reference.
1.3 “Applicable Law” means the laws, rules, regulations and orders that apply in light of the performance of obligations set forth herein.
1.4 “Authorized Users” 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, and (iii) Personnel of Customer or a Customer Affiliate that Customer registers to obtain access and use the Platform Services. Authorized Users may not include employees or representatives of direct competitors of eOriginal.
1.5 “Audit Trail” means the electronic record produced by the Software from metadata associated with either a Document or Signature Transaction and representing the history of all Platform Services interactions with such Document or Signature Transaction on the Platform Service.
1.6 “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 6.1 and Statistical Data). Confidential Information of eOriginal includes, but is not limited to, the Services and the terms of the Agreement.
1.7 “Customer” means the legal entity identified in an Order Form with Reseller as purchasing one or more Services, and/or ordering Signature Transactions for use with one or more Services, each as indicated in such Order Form.
1.8 “Customer Data” 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 of the Platform Services.
1.9 “Data Security Addendum” mmeans eOriginal’s data security and privacy obligations available at https://www.eoriginal.com/data-security-addendum/, as updated by eOriginal from time to time.
1.10 “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.
1.11 “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.
1.12 “Excess Capacity Fees” means the Fees charged to Customer for each Signature Transaction utilized by Customer in excess of Customer’s Purchased Capacity of Signature Transactions made in such Order Form.
1.13 “Fees” means, as applicable, all amounts due to Reseller under all Order Forms with respect to Services and Signature Transactions, and all amounts due to eOriginal under all Task Orders.
1.14 “Integration” means the API integration between any system or service of Reseller and the Platform Services, enabled by the partnership between Reseller and eOriginal.
1.15 “Order Form” means the separate written agreement executed by Customer and a Reseller that specifies the Services and/or Signature Transactions ordered by Customer pursuant to these T&Cs to be provided by eOriginal.
1.16 “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.
1.17 “Per Signature Transaction Rate” means that amount, on a per Signature Transaction basis, designated in an Order Form to be paid for use in connection with the Platform Services purchased in such Order Form.
1.18 “Personnel” means an agent, subcontractor or contractor of the Customer and eOriginal, and the employees of such agent, subcontractor or contractor.
1.19 “Platform Services” means eOriginal’s provision of access to the Customer of the Software as designated in an Order Form.
1.20 “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.
1.21 “Professional Services” means those Services (other than the Platform Services) purchased by Customer in an Order Form or in a Task Order which enable, support, enhance or expand Customer’s use of the Platform Services.
1.22 “Purchased Capacity” means the total number of Signature Transactions which Customer has purchased for use over the Term.
1.23 “Reseller” means the authorized reseller of the Platform Services having entered into the Order Form with Customer.
1.24 “Scope of Use” means the right granted to Customer in these T&Cs to utilize, and to allow its Authorized Users to access the Platform Services for any Signature Transactions containing Documents related to the use case forming the basis of the pricing set forth on the Order Form, provided however that such Documents are not related to residential real estate financing and related processes.
1.25 “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.
1.26 “Services” means all services identified in an Order Form or Task Order as purchased by Customer, which services are to be provided by eOriginal to Customer, including and not limited to the Platform Services and/or Professional Services.
1.27 “Signature Transactions” means a virtual folder on the Platform Services into which Customer may upload or receive one or more Documents. Signature Transactions are created by operation of the Software may also be referred to herein or in any addendum as “Transactions.”
1.28 “Software” means eOriginal’s proprietary software programs, namely eOriginal SmartSign® Software, and their related user interfaces, as well as all software operated by eOriginal to provide 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 Task Order or any new functionality which is separately priced by eOriginal unless Customer executes an additional or replacement Order Form and/or Task Order to license or access such additional or new functionality.
1.29 “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.
1.30 “Task Order” means a separate written agreement executed between eOriginal and Customer for the purchase and provision of Professional Services, Services upgrades which describes the Fees, deliverables, timing and scope of such Services.
1.31 “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 from eOriginal.
1.32 “Term” means the period an Order Form is effective, Services shall be provided, and Signature Transactions may be used in connection with the Services. The Term shall begin on the Order Start Date and continue until the first to occur of (i) the date the Order Form is terminated pursuant to these T&Cs or (ii) the date the Order Form expires or is terminated pursuant to its terms.
1.33 “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.
1.34 “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).
1.35 “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 LICENSE; SERVICES.
2.1 Access Rights and License. The Platform Services, and all Signature Transactions 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 and/or Task Order will be required and additional Fees will apply. Subject to the terms and conditions of the Agreement and eOriginal’s receipt of applicable Fees, 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 and Signature Transactions set forth in an Order Form subject to the Scope of Use:
(a) For Access to and Use of Signature Transactions: Authorized Users are authorized to log into the Platform Services and upload Documents and Customer Data into Signature Transactions purchased in an Order Form.
(b) 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 by Customer as set forth herein.
2.2 Limitations.
2.2.1 Signature Transactions; Expiration. All Signature Transactions purchased in an Order Form expire at the end of the Term of such Order Form and shall not “rollover” to any future period beyond the Term. All Fees remain payable and Customer is not entitled to any credits or reductions in Fees for any unused Signature Transactions that were purchased regardless of whether Customer actually creates or maintains the amount of Purchased Capacity or Excess Capacity Fees purchased in or paid under an Order Form.
2.2.2 Access Restrictions. The rights and licenses granted herein by eOriginal do not grant Customer, any Affiliate of Customer, any Authorized Users or Personnel of either, or any third party any right to sublicense, distribute, reproduce, transfer or transmit any of the Platform Services, Signature Transactions, the Software or Documentation, or any portion thereof. Customer and Authorized Users shall not, and shall not permit any entity or natural person to: (i) attempt, knowingly permit or encourage other persons or entity to copy, translate, decompile, decipher, disassemble, reverse engineer or otherwise decrypt or in any other manner discover the source code of, or other trade secrets from, all or any portion of the Software; (ii) 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; (iii) use external programs to alter, edit or append records to the data files or other information maintained within the Platform Services; (iv) 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; (v) allow any competitor of eOriginal access to the Platform Services or any Software; or (vi) 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. The Platform Services and all components thereof, including without limitation, all copies thereof, and the Software, software, and Documentation, and the patents, copyrights and other intellectual property rights related thereto, and any upgrades, modifications, adaptations, derivative works and enhancements to such property and materials, and all knowledge and processes related thereto or provided hereunder, shall be and remain the sole property and Confidential Information of eOriginal and/or its applicable third party vendors, and are licensed herein and not sold.
2.3. Access Suspension. 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.
2.4 Professional Services. Customer may elect to receive Professional Services from eOriginal in connection with the Platform Services, which shall be provided subject to these T&Cs and those of an effective Order Form or Task Order purchasing 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 eOriginal and Customer (“Change Order”). eOriginal shall have no obligation to perform Professional Services other than those specified in an effective Order Form or Task Order, or an effective Change Order attached to an effective Order Form or Task Order. 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 to provide the Professional Services, at the hourly rates set forth in the Task Order.
2.5 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.
- FEES.
3.1 Generally. All amounts due to Reseller under an Order Form with respect to Services and Signature Transactions shall be invoiced to Customer by Reseller under the terms of the Order Form. Customer is responsible to make timely payment to Reseller and Reseller is responsible to timely remit payment to eOriginal. Unless otherwise stated in a Task Order, eOriginal shall invoice Customer for all Fees due under the Task Order on the date Customer executes such Task Order, and 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 eOriginal 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 to eOriginal 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, the Platform Services, Signature Transactions and all Services. Customer 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, or Signature Transactions, eOriginal will set forth the amount of the 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 a Task Order as Customer’s place of supply for purposes of taxation or, if no such address is set forth in a Task Order, eOriginal may rely upon Customer’s address as set forth in the most recent effective Order Form.
3.3 Signature Transactions Fees; Excess Capacity Fees. Customer is allowed to create on the Platform Services during the Term the Purchased Capacity of Signature Transactions. If Customer creates Signature Transactions in excess of its Purchased Capacity during the Term, Reseller shall invoice Customer, and Customer shall pay, Excess Capacity Fees monthly in arrears for each Signature Transaction created during the prior month in excess of the Purchased Capacity at a rate which is 120% of the Per Signature Transaction Rate charged in Customer’s then-current Order Form. Signature Transaction Fees are payable regardless of whether Customer actually creates the amount of Purchased Capacity in an Order Form. The Purchased Capacity of Signature Transactions purchased by a Customer expires at the end of the Term and shall not “rollover” to any future period beyond the Term. Customer is not entitled to any credits or Fee reductions, or retroactive reductions of Fees, for any unused Signature Transactions.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
4.1 Customer. Customer represents to eOriginal that (i) these T&Cs have been duly authorized and approved and is binding on Customer, (ii) that no consent or approval of any third party or a government agency is required to make these T&Cs or any Task Order enforceable against Customer, (iii) 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 (iv) Customer shall not introduce into or deliver into the systems of the 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: (i) the Production Environment of the Platform Services shall be provided and maintained in accordance with the Service Level Addendum; (ii) 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 authoritative copies and transferable records ; (iii) 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 in an effective Order Form or Task Order. 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.
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 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 OF THE PLATFORM SERVICES, WHICH 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 2.3 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 Marking. Neither party shall use the other party’s name or trademarks without the express written consent of such other party; provided however that either party may use the other’s name and associated logo in 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 neither the Order Form nor the Agreement grants to Customer any 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, if requested, Customer shall: (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.
- TERM AND TERMINATION
5.1 (a)Early Termination.No Order Form may be terminated or cancelled except in accordance with these T&Cs. A Task Order shall terminate upon the earlier of (i) completion of the Services set forth therein or (ii) the date terminated in accordance with these T&Cs. Either party may terminate a Task Order or an Order Form for material breach of the other party of any term of these T&Cs 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 this Agreement, including these T&Cs and all Task Orders and Order Forms , as well as Services, 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. Upon any termination of an Order Form or a Task Order, eOriginal (and Reseller with respect to the Order Form) shall remain entitled to receive payment of all monies and Fees incurred up to and including the effective date of termination or expiration and no refund, offset or reduction will be due to Customer.
(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 and Services. 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 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 upload new Documents or to utilize any Signature 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 under a Task Order 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 or Task Order shall effect a termination of only the Services designated in such Order Form or Task Order. Termination or expiration of any single Order Form or Task Order shall not effect a termination of the Agreement or any other portion thereof; however, these T&Cs shall automatically terminate upon any termination or expiration of the last remaining effective Order Form or Task Order. 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, Signature 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 Aggregated 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 these T&Cs.
5.5 Survival. The following Sections shall survive any termination or expiration of the Agreement, any Order Form or Task Order, or portion thereof, in full force and effect, except to the extent such section provides a limited period of survival: Sections 1, 3 (to the extent Fees remain unpaid), 4.5, 4.6, 5.2, 5.3 (with respect to retained Confidential Information), 5.4, 6, 7, and 8.
- PROPRIETARY RIGHTS
6.1 Customer Data. 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, and access the Customer Data, Customer Confidential Information and Documents 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
6.2 The Platform Services. The Platform Services and all components thereof, including without limitation, the Software, software, Signature Transactions 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.
6.3 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).
6.4 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.
6.5 Ownership. Each party acknowledges that, as between the parties, all Confidential Information it receives from or on behalf of 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. Except to the extent expressly stated in these T&Cs, neither party shall have any right, title or interest in or to the other party’s Confidential Information.
- INDEMNIFICATION; LIMITS OF LIABLITY
7.1 Indemnification of eOriginal. 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 these T&Cs, Services under any Order Form or Task Order, 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 these T&Cs or an Order Form or Task Order, 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. Reseller, 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 U.S. First Class Mail or electronic mail transmission or sent by nationally recognized express courier, to the location set forth in the most recent effective Order Form or Task Order, 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][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. An Order Form or Task Order may be executed using 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.
