1. Provision of Services.
1.1 As used in these Subscription Terms, “Services” means the online, Web-based platform and applications that are ordered by you and made available by us pursuant to one or more Subscription Forms (defined below) under this Agreement. As used in these Subscription Terms, “Subscription Form” means the paper or electronic order form (including any exhibits, schedules, supplements, or addenda thereto) under which you ordered the applicable Services to be provided pursuant to the Agreement. Following Onit’s acceptance of a Subscription Form submitted by you, Onit will make the applicable Services available to you during the applicable subscription term as set forth in such Subscription Form, in which case any additional terms and conditions contained in such Subscription Form are hereby incorporated into the Agreement by reference and are legally binding.
1.2 From time to time, Onit may allow you to order Services on a free trial basis. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE SERVICES PROVIDED DURING THE FREE TRIAL PERIOD ARE PROVIDED AT YOUR SOLE RISK, “AS-IS” AND WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND.
1.3 From time to time, Onit may allow you to try certain products or services that are not generally available to customers (“Beta Services”). Beta Services will be clearly designated as beta, pilot, limited release, preview, non-production or similar designation. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. Onit reserves the right, in Onit’s sole discretion, to discontinue Beta Services at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BETA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED AT YOUR SOLE RISK, “AS-IS” AND WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND.
2. Fees; Payment.
2.1 Fees for Services are due and payable by you as specified in the applicable Subscription Form. Except as otherwise specified in the applicable Subscription Form, all payment obligations are non-cancelable and fees paid are non-refundable. If the applicable Subscription Form specifies that payment will be made by credit card, you shall provide us with valid and up-to-date credit card information and you hereby authorize us to charge such credit card for all fees specified in such Subscription Form, including all renewal periods, if any, in accordance with the billing frequency specified in the applicable Subscription Form. If the applicable Subscription Form specifies that payment will be made by a method other than by credit card, Onit will invoice you in accordance with the applicable Subscription Form.
2.2 If you wish to dispute any charges, you must notify us in writing of your good faith reasons for such dispute within 30 days of receipt of the applicable statement or invoice and timely pay all undisputed charges. Except for amounts disputed in good faith in accordance with this Section 2.1, amounts not paid by you by the due date will bear interest from such due date at the lesser of 1.5% per month or the maximum rate permitted by applicable law. Without limiting any of Onit’s other rights and remedies, if any amount owed hereunder is more than 30 days overdue (other than amounts disputed in good faith in accordance with this Section 2.1), Onit may suspend the Services until all amounts are paid in full; provided, however, Onit will give you notice that your account is overdue at least 14 days prior to any such suspension.
2.3 Unless specified in the applicable Subscription Form, fees do not include any taxes, duties, levies or charges of any kind assessable by any governmental authority (including but not limited to any VAT, GST and sales, use or withholding taxes, but excluding taxes based solely on Onit’s income, property and employees). If Onit is legally required to pay or collect any taxes for which you are responsible hereunder, Onit may bill and collect such amounts from you in addition to the amounts otherwise payable hereunder.
3. Proprietary Rights.
3.1 Except for the limited rights expressly granted to you hereunder, Onit reserves all right, title and interest in and to the Services, including all related intellectual property rights, and no rights are granted to you, whether by estoppel, implication or otherwise. To the extent you use the Services to automate businesses processes or submit electronic data to the Services, you authorize us to host, copy, transmit, adapt and display such processes and data, as necessary for us to provide the Services in accordance with this Agreement. Subject to the limited rights granted by you hereunder, Onit acquires no right, title or interest in or to such processes or data from you or your licensors under this Agreement.
3.2 You shall not (i) copy or frame any part or content of the Services other than as reasonably necessary for your own internal use of the Service in accordance with the Agreement, (ii) permit any third party to access the Services except as permitted herein and in the applicable Subscription Form, or (iii) create any derivate works based on the Services. You may download or copy content of the Services only as reasonably necessary for your own internal use of the Service in accordance with the Agreement. No right, title, or interest in any downloaded materials is transferred to you as a result of any such downloading and Onit reserves all right, title and interest in and to the materials you download from the Service including all related intellectual property rights. You may only access and use the Service as a business productivity tool for your own internal use and any other access or use by you is strictly prohibited under this Agreement. Without limiting the generality of the foregoing, you shall not access or use the Services if you are our direct competitor or for purposes of copying any features, functions, content or graphics of the Services, or benchmarking or monitoring availability, performance or functionality of the Services, or any other competitive purpose. You shall not reverse engineer the Services unless expressly permitted by applicable law without the possibility of contractual waiver.
3.3 User feedback is essential to the continued improvement of Onit’s products and services. You understand that Onit may collect information relating to your use of Onit’s products and services, including the nature and frequency of such use, and you hereby grant to us a royalty-free, fully-paid, worldwide, transferable, sublicenseable, irrevocable and perpetual license to use and incorporate into Onit’s products and services any suggestions, enhancement requests, recommendations, feedback or other information provided by you relating to your use of Onit’s products and services.
4.1 “Confidential Information” means all confidential information being disclosed by one party to the other party (including but not limited to marketing plans, business strategies, customer information, technical information, product plans and designs) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of its disclosure.
4.2 The receiving party will: (i) hold the disclosing party’s Confidential Information in confidence using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) restrict disclosure of the disclosing party’s Confidential Information to those of its employees, agents or representatives with a need to know such information and who are bound by obligations respecting the protection of confidential information which are substantially similar to those of this Agreement and which would extend to the disclosing party’s Confidential Information; and (iii) not use the disclosing party’s Confidential Information for any purpose outside the scope of this Agreement.
4.3 The restrictions in this Section 4 will not apply to Confidential Information to the extent it (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure to the receiving party without breach of this Agreement; (iii) was lawfully received by the receiving party from a third party without such restrictions; (iv) was known to the receiving party, its employees, agents or representatives without such restrictions prior to its receipt from the disclosing party; or (iv) was independently developed by the receiving party without breach of this Agreement. The receiving party may disclose Confidential Information to the extent required pursuant to judicial order or other compulsion of law; provided that the receiving party shall provide prompt notice of such requirement to the disclosing party (to the extent legally permitted) and shall comply, at the disclosing party’s expense, with any protective order imposed on such disclosure; provided further that the disclosing party shall reimburse the receiving party for the reasonable cost of compiling and providing secure access to such Confidential Information if such disclosure is required as part of a legal proceeding that involves the disclosing party.
4.4 You acknowledge and agree that employees, agents and representatives of Onit who have received or have been exposed to your Confidential Information may further develop their knowledge, skills and experience (including, but not limited to, ideas, concepts, know-how and techniques), which may be based on such Confidential Information. The restrictions in this Section 4 will not apply to the subsequent use, and disclosures incidental to such use, by such employees and agents of such knowledge, skills and experience, as unintentionally retained in their unaided memories. The receipt of or exposure to your Confidential Information under this Agreement will not in any way limit or restrict the work assignments of any of Onit’s employees, agents or representatives.
5.1 Onit shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party to the extent such claim, demand, suit, or proceeding alleges that your use of the Services as permitted hereunder infringes the intellectual property rights of a third party, and shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of such infringement; provided that you give us prompt written notice, reasonable assistance (at Onit’s expense) and sole control of the defense and settlement thereof (provided that any settlement unconditionally releases you of all liability).
5.2 You shall defend us against any claim, demand, suit, or proceeding made or brought against us by a third party to the extent such claim, demand, suit, or proceeding alleges that any of your business processes or data, or your use of the Services other than as permitted hereunder infringes the intellectual property rights of a third party, and shall indemnify us for any damages, attorney fees and costs finally awarded against us as a result of such infringement; provided that Onit gives you prompt written notice, reasonable assistance (at your expense) and sole control of the defense and settlement thereof (provided that any settlement unconditionally releases us of all liability).
5.3 If Onit reasonably believe the Services may infringe the intellectual property rights of a third party, Onit may, in Onit’s discretion and at no cost to you, either: (i) modify the Services so that they no longer infringe, (ii) obtain a license for your continued use of the Services in accordance with this Agreement, or (iii) terminate this Agreement upon 30 days’ written notice and refund to you any prepaid fees covering the remainder of the subscription period after the effective date of termination.
5.4 This Section 5 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
6. Disclaimers; Limitation of Liability.
6.1 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.2 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE LESSER OF $500,000 OR THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 2.
6.3 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.4 THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
This Agreement may be terminated by either party for cause upon 30 days written notice if the other party is in breach of any material provision of this Agreement if such breach remains uncured at the end of such 30 day period. Sections 3-8 survive any such termination or expiration.
8.1 If you are accepting the Subscription Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to the Agreement, in which case the terms “you” and “your” will refer to such entity and its affiliates. If you do not have such authority, you may not accept the Subscription Terms and you may not access or use the Services.
8.2 The Services comprise commercial computer software developed at private expense and are subject to limited utilization as expressly stated in this Agreement. Onit provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Onit to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
8.3 The Services may contain encryption or other technology, the provision of which is restricted by U.S. export control laws and regulations. You certify that you are not named on any U.S. government denied-party list and that you will use the Services in conformance with U.S. export control laws and regulations and will not provide or re-export the Services to the governments of Cuba, Iran, North Korea, Sudan or Syria or to any other destination to which the U.S. government may in the future prohibit exports or to citizens, nationals or permanent residents of those countries.
8.4 The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Nothing in this Agreement creates an exclusive relationship or in any way prevents Onit from entering into similar arrangements with or providing similar services to other entities, including, without limitation, other similar customers. You understand and acknowledge that Onit may, in Onit’s sole discretion, use some or all of the generalizable insights, information, or results of any of the products or services provided hereunder in providing products or services to other customers and nothing in this Agreement shall be construed to limit Onit’s right to do so.
8.5 This Agreement is governed by and will be construed using Texas law, without giving effect to conflict of law provisions or to constructive presumptions favoring either party. All actions arising out of or relating to this Agreement will be heard and determined exclusively by the state and federal courts located in Harris County, Texas and each party hereby consents to and waive any objections with respect to such jurisdiction and venue. Each party hereby waives any right to jury trial in connection with any action arising out of or relating to this Agreement.
8.6 This Agreement, together with your Subscription Forms and any exhibits, schedules, supplements, or addenda thereto, constitutes the final, complete and exclusive agreement among the parties regarding your acquisition and use of the Services and supersedes all prior or contemporaneous agreements or understandings, whether in written, oral, electronic, or other form, relating to the subject matter hereof, including any prior versions of the Subscription Terms.
8.7 No modification or waiver of any provision of this Agreement is effective unless it is contained in a written document that has been either signed or accepted electronically by the party against whom such modification or waiver is asserted. Except for the terms and conditions of Subscription Forms provided by Onit, the terms and conditions contained in any purchase order or other order documentation submitted by you will be null and void and will not be incorporated into this Agreement. No failure or delay by either party in exercising any right under this Agreement constitutes a waiver of that right. The waiver of any breach or provision of this Agreement will not be deemed a waiver of any different or subsequent breach.
8.8 The provisions of this Agreement are severable. In the event that any provision or portion thereof is found by any court to be invalid or otherwise unenforceable, the remainder of this Agreement will not be affected, and the parties consent to such court’s substitution of a valid and enforceable term that approximates the intent and effect of such invalid or unenforceable provision or portion.
8.9 No party will bear any responsibility or liability under this Agreement as a result of any “Force Majeure” including, but not limited to, act of God, war, riot, flood, civil commotion, insurrection, severe or adverse weather conditions, failure of any utilities, telecommunications or cloud computing provider, or any other cause beyond the reasonable control of such party; provided that: (i) the party affected by a Force Majeure gives the other party prompt notice of such Force Majeure and uses reasonable efforts to overcome such Force Majeure; and (ii) if a Force Majeure affects a party’s performance under this Agreement for more than 30 days, the other party may terminate this Agreement
8.10 Except as otherwise provided herein, any notice or other communication to be given hereunder must be in writing and either (as elected by the party giving such notice): (i) personally delivered; (ii) sent postage prepaid by registered or certified mail, return receipt requested; (iii) transmitted by facsimile (with a confirmation of receipt) or email; or (iv) deposited prepaid with a nationally recognized overnight courier service. Notices will be deemed to have been duly given on the date of receipt (or if non-electronic delivery is refused, the date of such refusal).
8.11 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph will be, at the non-assigning party’s election, termination of this Agreement for cause upon written notice to the assigning party. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties, their respective successors and permitted assigns.