Precedent General Terms for Monthly Subscription
1. GRANT OF RIGHTS
1.1 Onit, Inc. (“Onit”) will provide Company access to and use of the products outlined in the signed Commercial Terms between the parties (“Precedent Software”) subject to and in accordance with these General Terms.
1.2 Company hereby accepts the right to access and use, and to grant individuals the right to become Users to access and use, Precedent Software in accordance with these General Terms.
2.1 In these General Terms, the following expressions have the meanings set out below:
(a) Additional Commercial Terms means any additional commercial terms agreed between the parties, including (without limitation) by executing a document, or changes agreed to inside Precedent Software account management settings.
(b) Agreement means these General Terms, together with the relevant Commercial Terms and/or any SOW entered by the parties.
(c) Precedent Software means the website, connector or other software application made available by Onit wether via our website or via the Microsoft Store.
(d) Commencement Date means the commencement date set out in the Commercial Terms.
(e) Commercial Terms means the schedule of commercial terms to which these General Terms are attached together with any Additional Commercial Terms agreed between the parties.
(f) Confidential Information means information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) in connection with this Agreement that is a trade secret, marked as confidential, or would normally be considered confidential under the circumstances, including without limitation business plans, product plans, financial information, software and hardware designs, source code, information related to research, development, or integration, network traffic, and other technical, business, or financial data. Confidential Information shall not include information (i) that is known to a party prior to disclosure to the Receiving Party; (ii) that enters into the public domain through no action of the Receiving Party; (iii) that is independently developed by persons who had no access to the Confidential Information; or (iv) that is approved for release by written authorization of the Disclosing Party.
(g) Documentation means such documentation, manuals and other information as provided to Company by Onit relating to its use of Precedent Software.
(h) General Terms means these General Terms.
(i) Intellectual Property Rights means any current and future intellectual property rights whether registered or unregistered, including copyrights, design rights, trademarks, trade names, domain names, rights in logos and get-up, patents, inventions, confidential information and know-how, all rights in computer software, privacy, data and databases.
(j) Skillset Expiry Date means the expiry date for a Skillset as set out in the Commercial Terms.
(k) Skillset Initial Term means the initial term for each Skillset as set out in the Commercial Terms.
(l) Skillsets means the packages of additional Precedent Software features, access rights and/or related services that are described as “Precedent Software Skillsets” as set out on Precedent Software or the Website from time to time. The Skillsets that the Company will be provided are set out in the Commercial Terms.
(m) Plan Expiry Date means the expiry date for a Plan as set out in the Commercial Terms.
(n) Plan Initial Term means the initial term for each Plan as set out in the Commercial Terms.
(o) Plans means the packages of specific Precedent Software features, access rights and/or related services that are described as “Precedent Software Plans” as set out on Precedent Software or as otherwise made available from time to time. The Plans that the Company will be provided are set out in the Commercial Terms.
(p) Price means any prices stated in the Commercial Terms or any SOW.
(q) SOW means any statements of work describing professional services to be provided by Onit to the Company, to which these General Terms are specifically attached or referenced and which are executed by the parties.
(r) Technology means the proprietary artificial intelligence software platform developed by Onit to automate a range of processes, including but not limited to document review, compliance, drafting, discovery, research and triage.
(s) User means an employee or contractor of Company who Company authorises to use Precedent Software pursuant to these General Terms.
(t) User Account means an individual user account created in accordance with the requirements of Precedent Software.
(u) User Content means any content that is submitted or uploaded to Onit through a User’s use of Precedent Software.
(v) Website means the Onit website.
3.1 In this Agreement:
(a) unless the context requires otherwise, capitalised terms shall have the meanings given to them in clause 2.1, or as set out in context;
(b) a person includes any natural person, body corporate, unincorporated association or partnerships;
(c) the singular includes the plural and vice versa;
(d) a reference to a clause or schedule, unless the context otherwise requires, is a reference to a clause or schedule of this Agreement; and
(e) any reference to legislation shall be construed as referring also to any amendment or re-enactment (whether before or after the date of this Agreement).
4. REGISTRATION AND ELIGIBILITY
4.1 Creating a User Account and Profile
(a) Company may grant rights to Users to create User Accounts in order to access and use Precedent Software up to the total number of User Accounts set out in the Commercial Terms.
(b) Company acknowledges and agrees that:
(i) each User must create a User Account in order to be able to access Precedent Software;
(ii) each User is not a resident of a country in the European Union; and
(iii) Company remains liable for all of the acts and omissions of its Users as if such acts and omissions were performed by Company itself.
4.2 User Account security
(a) Company acknowledges that it is solely responsible for all activities that occur through the User Accounts of its Users.
(b) Company will ensure that its Users do not:
(i) share their password, login information or other security related information with any other person that may allow them to access a User Account;
(ii) permit any other person to use or access their User Account or login information; and
(iii) Company will immediately notify Onit if there has been, or Company or any of its Users suspects there will be, any unauthorised use of a User Account.
5.1 Company will pay the Price according to the payment terms set out in the Commercial Terms or SOW (as relevant).
5.2 Company acknowledges that Onit may change the Price on no less than 30 days’ notice by putting notice of such change on Precedent Software or by sending an email, and such change in Price will
take effect from the next payment date for Company. If Company does not accept the new Price, it may terminate this Agreement on 30 days’ written notice to Onit provided that Company acknowledges that it will not be entitled to any refund for any amounts paid in advance for any Plans or Skillsets for which it has not yet received the full benefit.
5.3 Company will pay all undisputed invoices in full no later than 30 days after the invoice is issued.
5.4 Company must pay interest on any late payments at the rate of 5% per annum.
6. TERM AND TERMINATION
6.1 The Agreement will commence on the Commencement Date set out in the Commercial Terms and will terminate on the date on which the Agreement is terminated in accordance with its terms. Each Plan will commence on the Commencement Date and run for the Plan Initial Term. Each Skillset will commence on the relevant Commencement Date and run for the Initial Term.
6.2 The Plan and/or Skillset (as relevant) will automatically renew for successive monthly periods during which a party may give the other party 90 days’ notice of termination, in which case the Plan and/or Skillset will expire at the end of the notification period.
6.3 A User may at any time, for any reason, close their User Account but Company acknowledges that this will not give rise to any right to claim a refund for the Price or any part of it.
6.4 Company may terminate this Agreement, Skillset and/or Plan:
(a) at any time on 90 days’ written notice to Onit but Company acknowledges that this will not give rise to any right to claim a refund for the Price or any part of it; or
(b) upon written notice to Onit if Onit has materially breached this Agreement and if such breach is capable of remedy, not remedied that breach within 30 days of Onit receiving written notice from Company specifying the breach and requiring it to be remedied.
6.5 Without limiting the foregoing, Onit may terminate this Agreement and/or terminate, suspend or modify a User’s use of a User Account and Precedent Software in the following circumstances:
(a) Onit receives a serious complaint or multiple complaints about a User from any other person;
(b) Company, or a User, breaches this Agreement;
(c) a User impersonates another person;
(d) Onit considers any conduct by Company or a User (whether or not that conduct is related to Precedent Software) puts Precedent Software, the Technology or other Users at risk; and/or
(e) Onit considers, in its reasonable opinion, that an act or omission of Company and/or a User may bring Onit into disrepute or adversely affect Onit ’s reputation or image.
6.6 Each Skillset will terminate automatically on the expiry or termination of all Plans which are connected to it. This Agreement will terminate automatically upon the expiry or termination of all of Company’s Plans.
6.7 Upon termination or expiry of this Agreement for any reason, Company and its Users will no longer be granted any rights to access or use Precedent Software.
7. SKILLSETS AND PLANS
7.1 Company acknowledges and agrees that Onit reserves the right to change what is provided in the Skillsets and Plans from time to time upon no less than 30 days’ notice to Company.
7.2 Onit grants Company a limited, revocable, non-exclusive license for the term of this Agreement to use, and allow its Users to use, the Documentation to configure and use Precedent Software in accordance with this Agreement.
8.1 Receiving Party shall only use Disclosing Party’s Confidential Information for the purposes of fulfilling its rights and obligations under this Agreement (the “Purpose”) and shall not disclose to third parties the Confidential Information except as set forth herein.
8.2 To the extent that Receiving Party needs to share the Disclosing Party’s Confidential Information with its employees, affiliates or contractors (“Representative”) in connection with the Purpose, the Receiving Party may disclose such Confidential
Information to such Representatives on a need-to-know basis, and provided that such Representatives are contractually obligated to protect the confidentiality and restrict the use or disclosure of Confidential Information on terms substantially similar to the terms of this Agreement.
8.3 The Receiving Party will protect the Confidential Information by using the same degree of care to prevent the unauthorized use, disclosure, dissemination or publication of the Confidential Information as the Receiving Party uses to protect its own comparable confidential information, materials and trade secrets, but no less than a reasonable degree of care.
8.4 The Receiving Party acquires no right to the Confidential Information other than the permitted use as specified herein. Except as provided by this Agreement, the Disclosing Party does not convey, grant or otherwise transfer any license to use, interest in or ownership of the Confidential Information to the Receiving Party.
9. INTELLECTUAL PROPERTY
9.1 Company acknowledges that Onit (and/or its suppliers and licensors) own all Intellectual Property Rights in and to Precedent Software, the Technology, the Documentation and the software and other material underlying and forming part of Precedent Software.
9.2 Onit reserves all right, title and interest not expressly granted under this Agreement to the fullest extent possible under applicable laws. In particular, Company acknowledges that nothing in this Agreement shall grant Company any rights to the Technology or any improvements in or to the Technology, including any right to access and/or use the Technology.
9.3 Company acknowledges and agrees that any improvement, modification or development of the Technology arrived at through Company or its Users’ access to and/or use of Precedent Software or otherwise will be owned exclusively by Onit (New IP). New IP shall also include any feedback provided by Company or its Users that is related to Precedent Software, or the Technology. If any New IP vests in or is owned by Company or its Users, Company hereby assigns, or will procure the assignment from its Users of, all right, title and interest in and to those Intellectual Property Rights to Onit , and Company shall do all such acts and execute such documents as may be necessary to vest all New IP in Onit .
9.4 Ownership of User Content. All User Content is and remains the property of the Company.
9.5 Company hereby grants, or will procure the grant from its Users to, Onit a non-exclusive, irrevocable, perpetual, royalty free license to use User Content, without limit in time, for the purposes of providing and improving Precedent Software and the Technology.
10. PRECEDENT SOFTWARE USE RULES
10.1 Company will, and will ensure that its Users will:
(a) comply at all times with applicable law;
(b) not interfere with another user’s use and enjoyment of Precedent Software;
(c) not interfere with or attempt to impair Onit ’s computer systems, Precedent Software or the Technology, shall not transmit any software viruses, Trojan horses, worms, other harmful files or other malware, and shall not cause or allow any software viruses, Trojan horses, worms, other harmful files or other malware to become embedded in Onit ’s computer systems, Precedent Software or the Technology;
(d) not use a robot, spider, scraper or other unauthorised automated means to access Precedent Software, the Technology or any content shown on Precedent Software;
(e) not attempt to undermine the security or integrity of Precedent Software or gain unauthorised access to any part of Precedent Software or the Technology, including attempting to gain access to a User Account other than the User Account of that User;
(f) keep information provided to Onit current (including but not limited to Company’s or a User’s (as the case may be) contact details);
(g) comply with the end user terms set forth by the Microsoft Store;
(h) work around any technical limitations in Precedent Software;
(i) not reverse engineer, decompile, alter, modify, adapt or disassemble Precedent Software;
(j) not make more copies of Precedent Software than specified in this Agreement; or
(k) not publish or otherwise make Precedent Software available for others to copy; or rent, lease or lend Precedent Software.
11. SERVICE LIMITS, DISCLAIMERS AND LIMITATIONS OF LIABILITY
11.1 Company acknowledges and agrees that any information that Company or its Users rely on using Precedent Software (including any output that is created through your use of Precedent Software) are entirely at its risk. Company is solely responsible for the actions and omissions that Company or its Users take in reliance on the information available on or accessed through Precedent Software.
11.2 Company further acknowledges that Onit is not a lawyer and Precedent Software is a drafting and reviewing tool, not a legal service or legal advice.
11.3 TO THE EXTENT PERMITTED BY LAW, ONIT HAS NO RESPONSIBILITY AND LIABILITY FOR:
(A) THE CONDUCT OF USERS, INCLUDING WITHOUT LIMITATION, NO RESPONSIBILITY FOR USERS WHO HAVE CREATED A USER ACCOUNT UNDER FALSE PRETENCES AND ACT FRAUDULENTLY;
(B) ANY ACT, OMISSION, REPRESENTATION OR BREACH OF ANY DUTY AT LAW BY ANY USER OR COMPANY; OR
(C) THE ACCURACY, RELIABILITY, COMPLETENESS AND CORRECTNESS OF ANY INFORMATION (INCLUDING ANY DATA, IMAGES, OPINIONS, ADVICE, REPRESENTATIONS AND DESCRIPTIONS) DISPLAYED, STORED, DESCRIBED OR CONTAINED ON PRECEDENT SOFTWARE OR PROVIDED DURING THE COURSE OF USING PRECEDENT SOFTWARE.
11.4 COMPANY ACKNOWLEDGES THAT PRECEDENT SOFTWARE IS PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED AT LAW, ONIT DISCLAIMS AND EXCLUDES ALL IMPLIED CONDITIONS OR WARRANTIES RELATING TO PRECEDENT SOFTWARE. WITHOUT LIMITING THE FOREGOING ONIT DOES NOT:
(A) GIVE ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT;
(B) WARRANT THAT PRECEDENT SOFTWARE WILL BE COMPATIBLE WITH COMPANY OR ITS USERS’ EQUIPMENT; OR
(C) WARRANT THAT PRECEDENT SOFTWARE WILL BE FREE FROM ERRORS, LOSS, DESTRUCTION, INTERRUPTION, CORRUPTION (INCLUDING CORRUPTION OF DATA), OR THAT PRECEDENT SOFTWARE WILL BE TIMELY OR SECURE.
11.5 ONIT WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGES ARISING FROM THE USE OF (OR INABILITY TO USE) PRECEDENT SOFTWARE, INCLUDING ANY LOSS, COSTS OR DAMAGES ARISING FROM ANY:
(A) CORRUPTION OR LOSS OF DATA OR OTHER INFORMATION;
(B) MALWARE THAT MAY BE TRANSMITTED TO COMPANY OR ITS USERS’ COMPUTERS BY USE OF PRECEDENT SOFTWARE;
(C) INTERRUPTION, SUSPENSION OR DISCONTINUANCE OF PRECEDENT SOFTWARE; OR
(D) TIME DELAYS OR TIME DIFFERENCES BETWEEN THE TIME SHOWN AND RECORDED ON THE ONIT SYSTEMS AND THE TIME SHOWN AND RECORDED ON COMPANY’S OWN COMPUTER OR MOBILE DEVICE AND SYSTEMS (AS THE DATE AND TIME THAT COMPANY SEE WHEN COMPANY USE PRECEDENT SOFTWARE IS BASED ON THE DATE AND TIME SETTINGS OF COMPANY’S USER’S OWN COMPUTER OR MOBILE DEVICE).
11.6 EXCEPT AS REQUIRED BY LAW, ONIT WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL LOSS OR SPECIAL DAMAGES, LOSS OF PROFIT OR ANY COSTS, EXPENSES OR OTHER CLAIMS WHATSOEVER FOR ANY CONSEQUENTIAL COMPENSATION (AND WHETHER CAUSED BY THE NEGLIGENCE OF ONIT , ITS EMPLOYEES, ITS AFFILIATES, OR AGENTS OR OTHERWISE) WHICH ARISE OUT OF, OR IN CONNECTION WITH ANY BREACH OF CONTRACT (BEING THIS AGREEMENT), EQUITY, COMMON LAW, STATUTORY DUTY OR BY REASON OF ANY REPRESENTATION, IMPLIED WARRANTY OR OTHER CONDITION.
11.7 UNDER NO CIRCUMSTANCE WILL ONIT BE LIABLE TO ANY THIRD
PARTY FOR ANY LOSS, COST, DAMAGES, COMPENSATION OR ANY OTHER CLAIM WHATSOEVER ARISING OUT OF OR IN RELATION TO COMPANY’S (OR A USER’S) USE OF PRECEDENT SOFTWARE, ANY ACTIONS THE COMPANY (OR A USER) TAKES IN RELIANCE ON THE INFORMATION AVAILABLE ON OR ACCESSED THROUGH PRECEDENT SOFTWARE, OR OTHERWISE IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF COMPANY’S OBLIGATIONS UNDER THIS AGREEMENT.
11.8 TO THE EXTENT PERMITTED BY LAW, ONIT ’S MAXIMUM AGGREGATE LIABILITY TO COMPANY ARISING OUT OF OR IN CONNECTION TO THIS AGREEMENT, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED THE ACTUAL PRICE PAID BY THE COMPANY TO ONIT DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS APPLIES EVEN IF ONIT KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES.
11.9 NO ACTION SHALL BE BROUGHT BY COMPANY OR ITS USERS FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE YEAR AFTER THE EVENT GIVING RISE TO THE CLAIM.
12.1 Company will indemnify Onit from and against any loss, cost, damage or expense of any nature whatsoever suffered or incurred by Onit arising out of:
(a) Company’s breach of this Agreement;
(b) any of its Users’ breach of this Agreement;
(c) Company’s or its User’s gross negligence or willful misconduct;
(d) any claim that the User Content infringes the Intellectual Property Rights of any third party or is otherwise not provided in accordance with these General Terms (including that the User Content or any part of it is not authorised to be licensed to Onit , or is false, misleading, deceptive, inaccurate and/or misrepresentative); and
(e) any claim by a third party in relation to Company’s and/or a User’s use of Precedent Software, the performance or non-performance of Company’s obligations under this Agreement, or any actions or omissions Company and/or a User take in reliance on the information available on or accessed through Precedent Software.
13. AUDITING AND MONITORING
13.1 As part of any Onit compliance program (to manage compliance with this Agreement and any law or requirement by any authority), Onit reserves the right to:
(a) review, audit and monitor (manually or through automated means) Company and its Users’ use of Precedent Software;
(b) take any action Onit deems appropriate in its sole discretion in accordance with its policies, including suspending or terminating any User Account, editing, removing or blocking any content that Onit deems inappropriate or unacceptable, and in the case of any illegal or suspected illegal activity, reporting any matters to the appropriate authority; and
(c) access, collect, preserve or disclose information about Company and its Users’ use of Precedent Software (including any communications and content Company submits) as is necessary to:
(i) comply with any legal process;
(ii) enforce this Agreement;
(iii) respond to any claims or complaints about any content Company submits, or act or omissions by Company or its Users;
(iv) respond to customer service requests; and
(v) protect the rights, property, safety of Onit, any user or the public.
13.2 Onit reserves the right to review, audit and monitor (manually or through automated means) Company and its Users’ use of Precedent Software for the purpose improving
Precedent Software, the Technology, or the services provided hereunder.
13.3 Where Onit considers that Company’s usage of Precedent Software is excessive or unreasonable, including where such usage exceeds estimated usage patterns or is inconsistent with normal usage patterns:
(a) Onit may contact Company asking Company to stop or alter Company’s usage to come within Onit ’s definitions of fair use; and
(b) if Company’s excessive or unreasonable usage continues after Company’s receipt of the request to alter usage, then Onit may, without further notice to Company, either:
(i) apply additional fees to Company’s usage of Precedent Software, which shall be due and payable immediately;
(ii) suspend, modify or restrict Company’s use of Precedent Software; and/or
(iii) terminate this Agreement.
14. PROFESSIONAL SERVICES
14.1 If the parties agree to Onit ’s provision of any professional Services, they will enter into a mutually executed SOW governing the provision of the professional Service. The SOW will incorporate the terms and conditions of this Agreement. To the extent that a conflict exists between the terms and conditions of the SOW and the terms of this Agreement, the terms and conditions of this Agreement will prevail unless the SOW expressly supersedes such terms.
15.1 The Prices are exclusive of all applicable sales, use, value-added or similar taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and the Company will be responsible for payment of all such taxes (other than taxes based on Onit ’s income), fees, duties, and charges and any related penalties and interest, arising from the transactions contemplated by this Agreement. The Company will make all payments of the Price to Onit free and clear of, and without reduction for, any withholding taxes. If Onit issues an invoice to the Company for or including any taxes which Onit is obligated to collect from the Company, the Company shall promptly pay the amount invoiced as otherwise required under this Agreement. The Customer shall indemnify and defend Onit from any costs, including any taxes, duties, tariffs, assessments, export and import fees, interest, penalties, attorney’s fees, or other expenses, incurred in connection with any transactions contemplated by this Agreement.
16. GENERAL TERMS
16.1 Company agrees that Onit may host the Precedent Software in the United States and access it globally. In addition, Onit can use subcontractors (including its affiliates) in providing the Precedent Software, professional services, support or any other related Services.
16.2 Onit has no liability to Company for any lack of performance, unavailability or failure of Precedent Software, or failure to comply with this Agreement or where the same arises from any cause reasonably beyond the control of Onit .
16.3 Company acknowledges that when using Precedent Software, the Company will be exposed to text, information and clauses (“Content”) that has been collected from a variety of sources. Onit accepts no responsibility that use of the Content by the Company or a User will be appropriate to give effect to an intended consequence or enforceable in any context or for any purpose.
16.4 Onit may provide Company with notices, including notices relating to this Agreement by way of electronic communications, including by email or other electronic communication on Precedent Software.
16.5 If Onit does not exercise or enforce any rights available to Onit under this Agreement that does not constitute a waiver of those rights.
16.6 Company may not assign, transfer and/or subcontract any of its rights under this Agreement.
16.7 If any provision contained in this Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of this Agreement will remain in full force and effect and will not in any way be impaired.
16.8 For any questions about Precedent Software, please contact Onit’s Precedent Support Team:
Email: [email protected]ccarthyfinch.com
16.9 Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of the Price due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes.
16.10 The validity of this Agreement, the construction of its terms and the determination of the rights and duties of the parties hereto shall be governed by and construed in accordance with the laws of the State of Texas. The parties hereby submit and consent to the non-exclusive jurisdiction of the state or federal courts within or closest to the city of Houston, Texas for any legal action brought under or in conjunction with this Agreement.
16.11 This Agreement, along with any Commercial Terms, SOWs, or any other attachments specifically incorporated herein by reference, sets forth the entire agreement between the parties with respect to its subject matter and supersedes any prior agreements or communications between the parties, whether written or oral, relating hereto. No representation, inducement, or promise has been made or relied upon by either party in entering into this Agreement other than as specifically set forth herein.
16.12 The execution of this Agreement by electronic means shall be deemed to constitute effective execution of this Agreement as to the parties hereto. Such electronic signatures may be used by the parties in lieu of the original signature page(s) of this Agreement for any and all purposes.