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 accessed 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.
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.
1.4 “Applicable Law” means the laws, rules, regulations and orders that apply in light of the performance of obligations set forth herein.
1.5 “Confidential Information” means the specific terms and provisions of the Agreement, information contained in the Documents, Customer Data (as to Customer) customer lists, employee or Personnel information, user information and access credentials, financial and statistical information, pricing information, product and service development information, software, Software (as to eOriginal), systems, processes, formulae, inventions, discoveries, pending patent applications and patentable ideas, any other technical information or schema, any other non-public information regarding any aspect of the operations or corporate strategy of either eOriginal or Customer, regardless of the form of such information, information or data provided by third parties under nondisclosure agreement or other obligation of confidentiality, any information or data that is marked as confidential, and all other confidential, proprietary or trade secret information disclosed by or on behalf of either eOriginal, Reseller or Customer, or the representatives of any of them, in writing or otherwise, that should reasonably be understood to be confidential.
1.6 “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.
1.7 “Customer Data” means the content, Documents, materials, data and information that an Authorized User or Customer inputs, receives or uploads into the Production Environment of the Platform Services. Customer Data shall not include any component of the Software, the Services, any material provided by or on behalf of eOriginal.
1.8 “Data Security Addendum” means eOriginal’s data security and privacy obligations available at https://www.eoriginal.com/data-security-addendum/.
1.9 “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.
1.10 “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.
1.11 “Signature Transactions” means a virtual folder on the Platform Services into which Customer may upload or receive one or more Documents, subject to the Transaction Type via the Integration. Signature Transactions are created by operation of the Software as more fully described in the particular Transaction Type and may also be referred to herein or in any addendum as “Transactions.”
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 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 a Vault on 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, provision of Services shall begin and any Signature Transactions purchased in such Order Form may be utilized. 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 of a given Transaction Type in connection with the Platform Services purchased in such Order Form.
1.18 “Personnel” means an agent, subcontractor or contractor of the applicable party, 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, single instance, 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, Support Services or Audit / Vendor Assessment 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 in one or more Order Forms for use over the Term to obtain the discounted Per Signature Transaction Rate applicable to such Order Form(s).
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 Professional Services.
1.27 “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.
1.28 “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.
1.29 “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.
1.30 “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.
1.31 “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).
1.32 “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 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.
2.2.1 Signature Transactions Expiration and Transaction Types. 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, and to suspend access by Customer and all Authorized Users if eOriginal fails to receive payment under any effective Order Form or Task Order after lapse of any applicable notice and cure period. eOriginal will inform Customer of the identity of the Authorized User so suspended and the reasons for suspension.
2.4 Support Services. Customer’s Technical Contacts will receive ongoing Support Services at the level purchased in an Order Form or Task Order. 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 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.
2.6 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. 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. 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 one percent (1%) per month. eOriginal may suspend provision of Services in the event Customer fails to timely remit payment under an effective Order Form or Task Order.
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 Each Party. Each party represents to the other that (i) these T&Cs have been duly authorized and approved and is binding on said party, (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 such party, (iii) that such party 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 provisions of data and information to the other party; and (iv) such party shall not introduce into or deliver into the systems of the other party any virus, malware or other data or code that is invalid, illegal or that is intended to or does cause data loss or other damage to data (including Customer Data).
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 (as such terms are defined under Applicable Law and as such may be applicable to the Signature Transactions purchased by Customer); (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; and (iv) to its knowledge on the Order Start Date, the Services do not infringe any patent, copyright, trade secret or trademark of a third party.
4.3 Data Security; Access Credentials. Each party covenants to use reasonable computer and data security practices (but no less than practices required by Applicable Law) in respect of its access to, transfer, uploading, downloading, use, storage and processing of, the data, information and systems of the other party (including 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 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 Cooperation. Each party covenants to use reasonable effort, but not less than the effort expressly required by these T&Cs, to cooperate with the other party in the performance and receipt of performance of the Services.
4.5 Disclaimer. EXCEPT FOR THE REPRESENTATIONS, WARRANTIES AND COVENANTS IN THESE T&Cs, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. eORIGINAL DOES NOT WARRANT THAT ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND, EXCEPT AS SET FORTH IN THESE T&Cs, ALL SERVICES ARE PROVIDED “AS IS” WITHOUT FURTHER WARRANTY OF ANY KIND. THE WARRANTIES MADE BY eORIGINAL HEREIN DO NOT APPLY TO ANY TEST ENVIRONMENT OR PREVIEW ENVIRONMENT OF THE PLATFORM SERVICES, AND EACH SUCH ENVIRONMENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. eORIGINAL IS NOT A LAW FIRM AND ITS ATTORNEYS REPRESENT eORIGINAL AND NOT THE RESELLER NOR CUSTOMER, ANY CUSTOMER AFFILIATE NOR AUTHORIZED USER. INFORMATION, ANSWERS, COMMENTS, ANALYSIS AND RECOMMENDATIONS PROVIDED BY ANY eORIGINAL EMPLOYEE OR PERSONNEL IN THE PROVISION OF SERVICES, INCLUDING BUT NOT LIMITED TO ANY RESPONSES TO LEGAL QUESTIONS, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. eORIGINAL DOES NOT HAVE AN ATTORNEY-CLIENT RELATIONSHIP WITH OR FIDUCIARY DUTY TO CUSTOMER, ANY CUSTOMER AFFILIATE NOR AUTHORIZED USER. CUSTOMER IS ENCOURAGED TO CONSULT WITH AN ATTORNEY REGARDING CUSTOMER’S SPECIFIC LEGAL ISSUE.
4.6 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.
4.7 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.
4.8 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 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: (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 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, these T&Cs and all Task Orders and Order Forms shall automatically terminate without notice or a right to cure upon any party’s assignment for the benefit of creditors or any commencement by or against a party 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.
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 to perform such removal or to otherwise provide transition Professional Services under a Task Order at eOriginal’s then-current time and materials rates.
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. eOriginal may utilize the Audit Trail and other information tracked by the Platform Services for purposes of improving the Platform Services, providing the Customer with reports on the Customer’s use of the Platform Services, and compiling aggregate statistics and usage patterns by customers using the Platform Services (“Aggregated Data”). All Aggregated Data will be in aggregate form only and will not identify Customer, any Customer Affiliate, any of Customer’s Authorized Users, or any third parties utilizing the Platform Services. Customer acknowledges and agrees that eOriginal may collect, use, and disclose Aggregated Data for industry analysis, benchmarking, analytics, marketing, and other business purposes.
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 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 Confidentiality. Each party agrees to hold all Confidential Information of the other party in confidence and not to, directly or indirectly, copy, reproduce, distribute, duplicate, reveal, report, publish, disclose, cause to be disclosed or otherwise transfer such Confidential Information to any third party or utilize such Confidential Information for any purpose other than as expressly contemplated by the Agreement. Each party will use at least the same degree of care to prevent disclosing to third parties the other party’s Confidential Information as it employs to avoid unauthorized disclosure, publication or dissemination of its own information of a similar nature, but shall use no less than reasonable care; provided, however, that a party may disclose such information to such party’s Affiliates and their employees and Personnel, and to persons or entities performing services required hereunder or otherwise performing services related to such party’s business operations, where the disclosure is to those of the recipient’s employees or Personnel who have a need to have access to such information in connection with their employment or engagement, so long as such party requires that each such third party owe a legal duty of confidentiality to such party, or have executed a confidentiality agreement containing terms and conditions, at least as protective of the Confidential Information as those set forth herein, and provided further that such disclosing party will remain responsible for any further disclosures or uses of Confidential Information by such third parties as if they were the actions of the disclosing party itself. The confidentiality obligations of the parties under this Section shall apply for five (5) years following the termination of the Agreement and, as to all Confidential Information which constitutes a trade secret under Applicable Law, for so long as such Confidential Information remains protected as a trade secret under Applicable Law.
6.4 Exceptions. Confidential Information shall not include any information which a party can show: (a) was in the public domain at the time of disclosure through no fault of such party; (b) is published or otherwise becomes part of the public domain through no fault of such party; (c) was rightfully already known by, or in the possession of, such party without obligation of confidentiality or other restriction at the time of disclosure; (d) was disclosed, without restriction, by a third party who rightfully received such information and had a lawful right to disclose such information; or (e) was independently developed by such party without reference to, or use of, Confidential Information of the other party. In addition, a party shall not be considered to have breached its obligations under Section 6.3 for disclosing Confidential Information to the extent such disclosure is required to satisfy any legal requirement of a competent court or governmental authority (including any state or federal regulatory agency having oversight of a party), provided that, promptly upon receiving any such request, such party notifies the other party prior to making such disclosure (unless prohibited by Applicable Law) to allow such other party to take such action as it deems appropriate to protect the Confidential Information, and reasonably cooperates with such other party (if requested by such other party), at such other party’s expense, in taking such actions.
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, nothing in the Agreement grants to either party 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 of Customer. eOriginal will indemnify, defend and hold harmless Customer 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 Customer arising out of or relating to the actual or alleged infringement by the Services of a United States patent, copyright, trademark or trade secret, or any other intellectual property right recognized in the United States (collectively, “Infringement Claims”); except to the extent the infringement results from: (i) breach of the Agreement by Customer, a Customer Affiliate or any Authorized User; (ii) information added or posted to the Platform Services by Customer or any Authorized User (in which case, eOriginal reserves the right, without liability to Customer to immediately remove such allegedly infringing information from the Platform Services); (iii) the use of Services in connection or in combination with equipment, devices or software of Customer, a Customer Affiliate, any Authorized User, or a third party; or (iv) modifications or configurations of the Platform Services by or on behalf of Customer made without the express prior consent of eOriginal. Additionally, if any component of the Services is, or in eOriginal’s good faith judgment likely to become, the subject of an Infringement Claim, eOriginal, at its expense and without prejudice to the right of indemnification provided in this Section, shall use commercially reasonable efforts to procure for Customer the right to continue using such component or replace or modify it to make its use hereunder non-infringing, provided such replacement is functionally equivalent. If neither option is reasonably practicable within ninety (90) days in eOriginal’s good faith judgment, eOriginal shall so notify Customer, and Customer, Customer Affiliates, Personnel and Authorized Users shall cease use of such component and, if applicable, eOriginal shall terminate access to such component and eOriginal shall issue a pro-rated refund for any prepaid Fees corresponding to loss of use of such component over the unused portion of the Term. The obligations of this Section 7.2 constitute eOriginal’s sole obligations in the event of any Infringement Claim and Customer shall have no other recourse against eOriginal.
7.3 Indemnification Procedures. The party seeking indemnification shall promptly notify the indemnifying party in writing of the claim and shall not compromise or settle such claim without written consent of the indemnifying party. The indemnifying party shall, upon payment of such indemnity, be subrogated to all rights of the indemnified party with respect to the claims and defenses to which such indemnification relates. The parties’ respective indemnification obligations above are conditioned on: (a) the indemnifying party 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 indemnified party); and (b) the indemnified party shall provide reasonable assistance in connection with the defense and settlement of the claim, as the indemnifying party may reasonably request.
7.4 General Limitations of Liability. EXCEPT FOR CLAIMS INDEMNIFIED HEREUNDER, MATERIAL BREACHES OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND DAMAGES RESULTING FROM DEATH OR BODILY INJURY ARISING FROM eORIGINAL’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, THE TOTAL LIABILITY OF eORIGINAL UNDER AN ORDER FORM OR TASK ORDER SHALL NOT EXCEED THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID OR PAYABLE TO eORIGINAL UNDER SUCH ORDER FORM OR TASK ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. EXCEPT FOR CLAIMS INDEMNIFIED HEREUNDER, FOR MATERIAL BREACHES OF SECTION 2.2 OR 6, OR MATERIAL BREACHES OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE IN ANY MANNER TO THE OTHER PARTY, TO ANY AFFILIATE, OR TO ANY AUTHORIZED USER, OR ANY THIRD PARTY, UNDER THE AGREEMENT, OR ANY ORDER FORM OR TASK ORDER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, LOST PROFIT, EXEMPLARY, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LEGAL FEES AND EXPENSES OTHER THAN THOSE AWARDED UNDER SECTION 8.8 BELOW), INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO LOSS OF BUSINESS, PROFITS, ASSETS, INFORMATION, DATA OR DOCUMENTS, OR LOSSES ARISING OUT OF THE USE OR INABILITY TO USE OR ACCESS THE SERVICES, DOCUMENTS, CUSTOMER DATA OR SIGNATURE TRANSACTIONS, WHETHER THE RELATED CLAIM IS UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. Each party acknowledges that the terms of the Agreement represent an agreed allocation of the risks reflected in the pricing in the Order Form or the Task Order and are an essential element of the basis of the bargain between the parties.
- 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 acknowledges and agrees that any breach of the agreements and covenants contained herein would cause irreparable injury to the other party for which such other party would have no adequate remedy at law. In addition to any other remedy for which a party may be entitled, each party agrees that the other party may seek temporary and permanent injunctive and other equitable relief and specific performance which may be granted without obligation to post a bond or other security, and without proof of actual damages, irreparable injury or lack of remedy at law.
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 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, 351 W. Camden Street, Suite 800, 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). Either party may change its address for notices upon written notice to the other party in the manner provided above.
8.6 Severability. If any term of the Agreement is held to be illegal, unenforceable or void, then each other provision will remain in effect and the illegal, unenforceable or void provision will be amended to the extent required to make it legal and enforceable. If no such amendment is possible, then such term will be stricken from the Agreement and all other provisions will remain in full force and effect.
8.7 Waiver. The observance of any term of the Agreement may be waived, but such waiver shall be effective only if made in writing and signed by the party entitled to enforce such term. No delay or omission on the part of any party in exercising any right or privilege under the Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right or privilege under the Agreement operate as a waiver of any other right or privilege under the Agreement.
8.8 Governing Law. These T&Cs, and the provision of all Services under Order Forms or Task Orders, will be governed by and construed in accordance with the laws, other than choice of law rules, of the State of Delaware and all applicable Federal laws of the United States. All disputes arising under these T&Cs shall be brought in the State of Delaware. All disagreements or controversies of any kind, whether claimed in tort, contract or otherwise, concerning these T&Cs 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. All parties WAIVE THE RIGHT TO A JURY TRIAL on all matters arising out of or relating to the construction, performance or breach of these T&Cs, and any Order Forms and Task Orders. 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. In the event a party’s performance of these T&Cs, the Services or any part thereof (except for obligations to pay monies) shall be rendered impossible by or as a consequence of any law or any act of any government or political subdivision thereof having jurisdiction over such party, such party shall not be considered in default hereunder by reason of any failure to perform as a result. Any delays in or failure by either party hereto in the performance of any obligations hereunder (except for any obligation to pay money) shall be excused if and to the extent caused by occurrences beyond such party’s reasonable control, including floods, fire, earthquake, riots, transportation conditions, strikes or other labor disturbances, war, whether declared or not, sabotage, or any other cause or causes which cannot be reasonably controlled by such party, and the time for performance shall be extended for the period of delay or inability to perform, provided that the affected party shall use its best efforts to address and mitigate the cause and effect of the force majeure event.
8.11 Export. The Software, Documentation and Services are not for export outside of the United States. Customer represents that it is not located in, or under the control of, or a national or resident of an embargoed country or prohibited end user under the export control laws and regulations of the United States.
8.12 Entire Agreement; Order of Precedence. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, between the parties with respect to the subject matter hereof. There are no representations, understandings or agreements relating to the Agreement that are not fully expressed herein. These T&Cs may not be modified or amended except by a written instrument executed by or on behalf of each of eOriginal and Customer. The Agreement also supersedes and controls over all conflicting, contradictory or inconsistent terms contained in any purchase order or other document submitted by Customer at any time after Customer’s execution of an Order Form or Task Order subject to these T&Cs, whether or not such purchase order or other document is formally rejected by eOriginal. Upon Customer’s request, eOriginal shall reference Customer’s purchase order number on eOriginal invoices. If a conflict arises between these T&Cs, an Order Form, a Task Order, any addendum or exhibit, and any externally referenced document, then the following order of preference, listed in the order of highest to lowest precedence first, shall be as follows: First: each Order Form (as between them, the latest signed Order Form shall take precedence); Second: each Task Order (as between them, the latest signed and current Task Order shall take precedence); Third: these T&Cs; Fourth: any addendum or exhibit; and last, any externally referenced document, such as on a website. In the event of any conflict between these T&Cs and any legal terms and conditions imposed by Reseller in any Order Form, these T&Cs shall supersede and control solely as to the relationship between eOriginal and Customer with regard to the provision and receipt of the Services.