Services Agreement (Archived)

This Services Agreement (together with any referenced exhibits or attachments, collectively the “Agreement”) is between Onit, Inc., a Delaware corporation (“Onit”), and the entity executing the applicable Order (“Customer”).  This Agreement is effective as of the “Effective Date“ specified on the applicable Order, or if no Effective Date is specified, the later of the two signature dates set forth in the applicable Order (the “Effective Date”).  This Agreement is incorporated by reference into, and governs, any executed Order, and Customer agrees that it is legally bound by this Agreement.

1. Defined Terms.

“Affiliate(s)” means an entity that is directly or indirectly owned or controlled by a party. For purposes of this definition, “control” refers to the power to direct the management or affairs of an entity and “ownership” refers to the beneficial ownership of 50% or more of the voting interests of the entity.

“Confidential Information” means the terms of this Agreement and any information that is marked or otherwise designated in writing as confidential at the time of disclosure, or absent a marking that a reasonable person would expect to be confidential under the circumstances, and which is disclosed by a party or its representatives to the other party or its representatives, whether such information was or is shared by the parties in the course of negotiating this Agreement before the Effective Date or thereafter. The Subscription Services, Documentation, Onit Materials, and pricing set forth in an Order are Onit’s Confidential Information. Customer Data is Customer’s Confidential Information.

“Customer Data” means any data, content or materials that Customer and its Users upload into, enter into, or submit to the Subscription Services, including from Third-Party Applications.

“Deliverables” means any software, materials, ideas, deliverables, and items that are conceived, or created by Onit’s personnel, whether alone or jointly with Customer’s or a third-party’s cooperation, in connection with providing Professional Services.

“Documentation” means the then-current online reference materials that Onit makes generally available to its customers that accompany the Subscription Services.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law(s)” means all laws, regulations, rules, court orders or other binding requirements of a government authority that apply to a party, in each case in jurisdictions where Onit conduct business and that are applicable to Onit’s provision of its Services to its customer base without regard for Customer’s specific use of the Services.

“Maintenance” means maintenance services provided by Onit for the Subscription Services as set forth in the Order.

“Order” means each separate, written document signed by the parties under which Customer orders the Services listed on the document and may include quantities and duration of the Services and the applicable use, fees, and costs. Each Order becomes a part of this Agreement.

“Onit Materials” means any technology, equipment, information, and materials provided or developed by Onit (independently or with Customer’s or a third-party’s cooperation) on its own initiative and in the course of performance under the Agreement, including without limitation, in the delivery of any Services to Customer, any derivative works thereof, and any Documentation.  Onit Materials do not include Customer’s Confidential Information.

“Personal Data” means Customer Data relating to an identified or identifiable natural person under applicable Laws.

“Professional Services” means the general consulting, configuration and provisioning, integration, , and other professional services identified on an Order or SOW, but do not include Subscription Services.

“Services” collectively means the Subscription Services, Professional Services and applicable Maintenance and Support.

“Service Level Agreement” or “SLA” means the service level agreement, if applicable, as set forth in the applicable Order.

“Statement of Work” or “SOW” means the document that describes the Professional Services to be provided, including the general project plan and schedule. Each SOW incorporates the terms of this Agreement. For purposes of this Agreement, an executed Statement of Work constitutes an Order.

“Sub-processors” means the subcontractors and sub-processors located at www.onit.com/sub-processors/, as may be updated from time to time (the “URL”), that Onit engages to provide Services on Onit’s behalf, who are subject to confidentiality obligations substantially as protective of the Customer Data as set forth in this Agreement and for whom Onit will be responsible for any breach of this Agreement by such Sub-processors acting on its behalf in connection with the Services to the same extent that Onit would responsible to Customer.

“Subscription Service(s)” means the subscription-based services identified on an Order. The Subscription Service includes the Onit’s web-based software applications, Documentation, Maintenance and Support but not Professional Services, Deliverables or Third Party Application(s).

“Subscription Term” means the term for Customer’s use of the Subscription Services, including any renewal term, specified in an Order.

“Support” means support services provided by Onit for the Subscription Services as set forth in the Order.

“Suspension Event” means suspension of the Subscription Service for one of the following events that remains uncured 10 days following Onit’s written notice to Customer:  (a) Customer’s undisputed payment obligation is 30 days or more overdue, and remains unpaid, (b) Customer’s failure to issue a purchase order, if required, as set forth in this Agreement; or (c) breach of the Usage Rules in Section 3.3. Onit is not required to give prior notice of exigent circumstances or for a suspension made to avoid material harm or violation of Law.

“Third-Party Application(s)” means any product, software, integration, API, add-on or platform not provided by Onit that Customer uses with the Subscription Service.

“Trials and Betas” means access to the Subscription Services  on a free, trial, beta or early access basis.

“Usage Data” means Onit’s technical logs, data and learnings about Customer’s use of the Subscription Service, including but not limited to, the number of reports run, the frequency of User log-ins, location of User log-ins, types of searches run and features used.

“User” means any individual natural person that Customer designates or grants access to the Subscription Service through a unique user ID issued by Customer. Users may include Customer or its Affiliates’ and their employees, or independent contractors, provided that each set of credentials may be used only by a single, individual User.

“Virus” means a routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back door or software routine, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications to the Subscription Service.

1.  Services.

1.1 Scope of Agreement.  This Agreement sets forth the terms and conditions on which Onit will provide its Services  to Customer.  The Fees, Subscription Term, and other details of Customer’s purchase are as set forth in an Order.  An Order may be executed by an Affiliate, in which case (with respect to that Order only) references to “Customer” throughout this Agreement will be deemed to refer to the Affiliate of Customer that signed the Order.  Each Order is a separate contract between Onit and the entity that executed it. Neither Customer nor any Customer Affiliate has any rights under each other’s separate agreement with Onit and breach or termination of any such separate agreement affects only that agreement.

1.2 Subscription Service; Orders.  Onit will make the Subscription Service and applicable Documentation available to Customer for its internal business purposes throughout the Subscription Term (“Permitted Use”).  Onit will provide the Subscription Service in accordance with the Service Level Agreement and Support provisions set forth in Order, as applicable.

1.3 Professional Services; SOW.  Onit will provide the Professional Services related to Customer’s use of the Subscription Service that are specified in an SOW.  Onit is not obligated to provide any professional services beyond those Professional Services set forth in an applicable SOW, unless and until the parties mutually agree in writing to any change order or amendment to such SOW.

2.  Fees and Payment.

2.1 Fees; Expenses.  Customer will pay the fees for the Subscription Service for the Subscription Term (collectively, “Subscription Fee”) and the fees for Professional Services (“Professional Fee”), each as specified in the Order.  Collectively, the Subscription Fee and Professional Fee are referred to in this Agreement as “Fees.” All Fees are nonrefundable once paid except as expressly otherwise provided in this Agreement and are subject to annual increase.  Professional Services will be invoiced as specified in the applicable Order. Customer agrees to reimburse Onit for actual, reasonable travel, living, and out-of-pocket expenses incurred in providing Services.

2.2 Payment.  Unless otherwise stated in an Order, all invoices are payable net 30 days from the date of invoice in U.S. Dollars. The invoicing process may be specified in an Order or communicated via written notice which may be given via email.  Customer will provide any requisite Purchase Order or P.O. number, documentation and/or any invoice portal credentials within 5 business days following execution of the applicable Order, or prior to any renewal, at no cost to Onit.   Any delay by Customer in issuing its purchase order will not have the effect of extending the payment terms as provided in this Agreement or the respective Order. Failure to timely issue a purchase order as set forth herein may result in a Suspension Event, late payment fees and/or termination of the Agreement.

2.3 Payment Method.  Customer will pay all Fees pursuant to the “Payment Method” specified in the Order Form.  If Customer’s Payment Method is specified as credit/debit card, electronic funds transfer (EFT) or Automated Clearing House (ACH) (each an “Alternative Method”), Customer authorizes Onit to charge Customer’s credit/debit card for all Fees payable during the Subscription Term and for any renewal, including a 3% transaction fee for each credit/debit card payment, and any actual fees charged by the other Alternative Method vendors. Customer further authorizes Onit to use a third party to process Alternative Method payments and consents to the disclosure of Customer’s payment information to such third party.

2.4 Taxes.   Fees and expenses are exclusive of Taxes.  Customer is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to its Orders or SOWs, whether domestic or foreign, other than Onit’s income tax.  If Onit is legally required to pay or collect any taxes for which Customer is responsible hereunder, Onit may bill and collect such amounts from Customer in addition to the Fees otherwise payable hereunder.  If Customer is exempt from sale and use taxes, Customer will provide to Onit, in advance, any applicable tax exemption certificates.

2.5 Late Payments; Suspension.  Late payments are subject to a charge of 1.5% per month or the maximum amount allowed by Law until paid in full. Customer is responsible for any collection costs due to non-payment. Onit may also suspend Customer’s access to the Services due to a Suspension Event.  Once the Suspension Event is resolved, Onit will promptly restore Customer’s access to the  Services in accordance with this Agreement.

2.6. Disputes.  If Customer disputes in good faith any portion of an invoice, Customer will timely pay the undisputed portion of the applicable invoice and timely submit written notice of the dispute within 30 days from the due date of the invoice, specifying in reasonable detail the nature of and amount in dispute (in addition to payment all other undisputed invoices which become due).  In the event that the parties are unable to resolve such dispute within 60 days of the due date of the invoice, either party may pursue any remedy available pursuant to this Agreement to enforce its rights hereunder.

3.  Provision and Use of Subscription Service.

3.1 Authorized Users.  Customer may designate Users as set forth in this Agreement.  Customer remains responsible for all use and misuse of the Subscription Service that occurs under Users’ login credentials and for any breach of this Agreement by any Users.  Customer agrees to promptly notify Onit of any unauthorized access or use of which Customer becomes aware.

3.2  Permitted Use.  Onit authorizes Customer and its Users to access and use the Subscription Service for the Permitted Use as set forth in the Order.

3.3  Usage Rules.  Customer will not (and will use diligent efforts to ensure that its Users do not): (a) “frame,” distribute, resell, sublicense, rent, or permit access to the Subscription Service (in whole or part) by any third party other than for its intended purposes or use the Subscription Service to provide hosted or managed service to others; (b) permit multiple Users to access the Subscription Service using a single email address and password; (c) use the Subscription Service other than in compliance with applicable Laws; (d) interfere with the Subscription Service or disrupt any other user’s access to the Subscription Service; (e) reverse engineer, decompile, attempt to gain unauthorized access to the Subscription Service, or attempt to discover the underlying source code or structure of the Subscription Service, except to the extent that these restrictions are prohibited by Laws and then only upon advance notice to Onit; (f) knowingly submit to the Subscription Service any content or data that is defamatory, harassing, discriminatory, infringing of third party intellectual property rights, or unlawful; (g) submit to the Subscription Service any Virus; (h) use any robot, spider, data scraping or extraction tool or similar mechanism with respect to the Subscription Service; (j) conduct security or vulnerability tests of the Subscription Service; or (k) use the Subscription Service to develop a competitive product. Breach of this section, based upon Onit’s reasonable belief, may result in a Suspension Event.

3.4 Onit APIs.  Onit may make its application programming interfaces (APIs), API access tokens, HTML scripts, data import tools, or other related software available to Customer as part of the Subscription Service (collectively, “Onit APIs”).  Onit authorizes Customer to use any such Onit APIs set forth in the applicable Order during the Subscription Term solely to access and use the Subscription Service for the Permitted Use, subject to the fees and restrictions on API usage that are set forth in the applicable Order.  Customer agrees not to distribute, disclose or make available the Onit APIs to any third party or (unless the parties separately agree otherwise in writing) to distribute, disclose or make available any software application or website that incorporates or calls the Onit APIs.

3.5 Sub-processors.  Customer agrees that Onit may use Sub-processors, including to host and access Customer Data, in order to assist Onit in providing the Services.  Customer agrees to subscribe to the email update service set forth on the URL and maintain an up-to-date email address to receive updates (each an “Update”).  To the extent that Customer objects, on a reasonable basis, to a new Sub-processor that is added via an Update, Customer may provide written notice to Onit at [email protected] within fifteen (15) days after receipt of such Update, specifying in detail its objection to such Sub-processor. The parties will work together without unreasonable delay to recommend an alternative arrangement. If a mutually acceptable and reasonable alternative arrangement is not agreed, Customer may terminate the affected Services without penalty. This termination right is Customer’s sole and exclusive remedy if Customer objects to any new Sub-processor. This provision does not limit any additional terms for Sub-processors under a DPA.

3.6 Usage Data.  Onit may collect and use Usage Data to operate, improve, secure and support the Subscription Service and for other lawful business purposes.  However, Onit will not disclose Usage Data externally unless it is de-identified so that it does not identify Customer or its Users.  For clarification, Customer Data excludes Usage Data.

3.7 Feedback.  If Customer gives Onit feedback regarding improvement or operation of the Services (“Feedback”), Onit may use the Feedback without restriction or obligation.  All Feedback is provided “AS IS” and Onit will not publicly identify Customer as the source of the Feedback without Customer’s permission.  Unless mutually agreed in writing, Onit has not agreed to and does not agree to treat as confidential any Feedback Customer provides to Onit and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Onit’s right to use, profit from, disclose, publish, keep secret or otherwise exploit Feedback, without compensating or crediting Customer. Feedback will not be considered Customer’s Confidential Information or Intellectual Property Rights.

3.8 Security.  Onit will maintain commercially reasonable administrative, technical and procedural safeguards designed to safeguard the Customer Data from unauthorized access, disclosure or loss.

3.9 DPA.  If required, the parties will enter into and adhere to the Data Processing Agreement (“DPA”) available at https://www.securedocs.com/terms-of-service#:~:text=out%20in%20our-,Data%20Protection%20Addendum,-where%20(i)%20SecureDocs.

3.10 Trials and Betas. Onit may offer optional Trials and Betas.  Use of Trials and Betas is permitted only for Customer’s internal evaluation during the period designated by Onit on the Order (or if not designated, 30 days).  Either party may immediately terminate Customer’s use of Trials and Betas at any time for any reason.  Trials and Betas may be inoperable, incomplete or include features never released.  Notwithstanding anything else in the Agreement, Onit offers no warranty, indemnity, SLA or Support for Trials and Betas and its liability for Trials and Betas will not exceed US $1,000.

3.11 Third Party Applications.  Upon Customer’s request, Onit may integrate with certain Third Party Applications separately licensed by Customer for use in connection with the Subscription Service. These Third Party Applications are not part of the Subscription Service and this Agreement does not apply to such Third Party Applications, even if Customer elects to integrate Third Party Applications with the Subscription Service.  Each Third Party Application is made available exclusively in accordance with the terms and conditions of the end user license agreement accompanying it, and Onit has no liability whatsoever with respect to Third Party Applications or any transfers of data to such Third Party Applications.

3.12 No Legal Advice.  ONIT IS NOT A LAW FIRM AND DOES NOT OFFER LEGAL ADVICE. Onit, including its employees and agents and the Services offered by Onit, does not offer any legal advice, recommendations, opinions, representation, referrals, or counseling. Onit does not bear any liability in respect of quality or compliance of Customer Data uploaded, automated or generated  by Customer.

4.  Customer Data.

4.1 Ownership of Customer Data; Representation.  Customer retains all right, title and interest in the Customer Data. Customer is responsible for the content and accuracy of Customer Data.  Customer represents and warrants that it has all rights, permissions and consents necessary (a) to collect, store and process all Customer Data, including all Personal Data, on the Subscription Service, (b) to grant Onit the limited license to use Customer Data as set forth in this Agreement, and (c) for any transfer or disclosure of Customer Data among  Users or as otherwise authorized by Customer.  If an individual whose Personal Data is hosted by Onit in connection with the Subscription Service requests access to their Personal Data,  Customer is responsible for providing reasonable access to, modification of, or deletion of their Personal Data and in addition, handling any claims, disputes or proceedings.  Onit will provide assistance with any of the above at either Customer’s or the individual¹s request at its standard billing rates.

4.2 Use of Customer Data by Onit.  Customer agrees that Onit may use Customer Data to provide and maintain the Subscription Service, and provide Professional Services, Maintenance and Support to Customer, including without limitation by making Customer Data available for viewing, download and modification by Users.  Provided that it has been aggregated with other data and anonymized such that neither Customer nor any individual can be identified as the source of the data to external third parties, Onit may use Customer Data for product improvement, analysis, benchmarking, and similar purposes.

5. Term and Termination.

5.1 Term of Agreement.  This Agreement begins on the Effective Date and will remain in effect until terminated as set forth herein (the “Term”).  Either party may terminate this Agreement in its entirety at any time and for any reason if there is no Order then in effect by providing ten (10) days prior notice to the other party in writing.  If no Order Form is in effect for more than 60 days, this Agreement will automatically terminate.

5.2 Term of Order.  Each Order is in effect for the Subscription Term specified in the Order.  Unless the Order states otherwise, each Order will automatically renew for successive periods of 12 months unless (a) the parties agree on a different renewal Order, or (b) either party notifies the other of non-renewal as specified in the Order at least 90 days prior to the end of the current Subscription Term, or as otherwise specified in the Order.

5.3  Termination for Cause.  Either party may terminate an individual Order or this Agreement in its entirety, immediately if the other (a) fails to cure a material breach of this Agreement, if capable of cure, within 30 days after notice from the other party specifying the nature of the breach, (b) ceases operation without a successor, or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such proceeding is instituted against that party and not dismissed within 60 days.   

5.4 Effect of Termination.  Upon expiration or termination of an individual Order or this Agreement for any reason: (a) with respect to termination of the entire Agreement, all Orders will concurrently terminate; (b) all rights and obligations of the parties under this Agreement will cease except that the following sections survive any such termination or expiration: 1 (Defined Terms), 2 (Fees and Payment) (with respect to amounts accrued but unpaid as of the effective date of termination), 3.5 (Sub-processors), 3.6 (Usage Data), 3.7 (Feedback), 3.8 (Security) 3.9 (DPA), 3.12 (No Legal Advice), 4 (Customer Data), 5.4 (Effect of Termination), 5.5 (Data Export and Deletion), 6 (Intellectual Property), 7 (Confidentiality), 8.1 (General), 8.5 (Disclaimer), 9 (Liability Limitation; Damages Exclusion), 10 (Indemnification) and 11 (General); (c) notwithstanding any provision of any surviving section, Customer will have no further right to use the Subscription Service under the terminated or expired Order; and (d) Customer will not be entitled to any refund of fees paid except if Customer, pursuant to Section 5.3, has terminated an Order for Onit’s uncured breach of the Performance Warranty set forth in Section 8.2, or the Professional Services Warranty set forth in Section 8.3, then Customer will be entitled to the applicable refund specified in Section 8.4, Remedies.  Upon termination, subject to Section 5.5, each party will destroy all Confidential Information of the other party in its possession received under this Agreement and will not make or retain any copies of such Confidential Information except as required to comply with any applicable Laws or reasonable internal record-keeping or information technology policies. Notwithstanding the foregoing, non-destruction of electronic copies of materials containing or reflecting Confidential Information that are automatically generated through data backup or archiving systems will not be deemed to violate this Agreement, so long as the Confidential Information contained therein is not disclosed or used in violation of the other terms of this Agreement.   

5.5 Data Export and  Deletion.  For 30 days following: (a) expiration of this Agreement,  or (b) termination of any Order without a renewal term, or (c) as otherwise agreed in writing by the parties pursuant to a Statement of Work (each an “Export Period”), Customer will be granted access to the Subscription Service for the purpose of exporting Customer Data from the Subscription Service using the built-in functionality to export such data during the Export Period.  Following expiration of the Export Period, Onit will delete the Customer Data in the Subscription Service in accordance with Onit’s then-current retention policy. During the Export Period, the terms of the Agreement will continue to apply to each party.

6.  Intellectual Property.

6.1  Subscription Service and Documentation.  As between the parties, Onit retains all right, title and interest in and to (a) the Subscription Service (including but not limited to the underlying software, source code, design modules, organization, format, algorithm and other technology) used to provide it, and all Intellectual Property Rights therein; (b) all electronic and print Documentation and other content and data (excluding Customer Data) made available through the Subscription Service; and (c) Professional Service Deliverables.  Except for Customer’s rights to access and use the Subscription Service set forth in this Agreement, nothing in this Agreement licenses or conveys any of Onit’s Intellectual Property Rights to anyone, including Customer.

6.2 Professional Services and Deliverables.  Onit will perform Professional Services as described in an Order or Statement of Work, which may identify additional terms or milestones for the Professional Services.  Customer will give Onit timely access to Customer personnel and materials reasonably needed for Professional Services. Customer may use the Deliverables Onit furnishes as part of the Professional Services only in connection with the Permitted Use.

7.  Confidentiality.

7.1 Use and Protection.  Recipient will (a) use Confidential Information only to fulfill its obligations and exercise its rights under this Agreement, (b) not disclose Confidential Information to third parties without the discloser’s prior approval, except as permitted in this Agreement and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.

7.2 Permitted Disclosures.  Recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, Sub-processors for Onit), provided it remains responsible for their compliance  to confidentiality obligations no less protective than as set forth in this Agreement.

7.3 Exclusions.  These confidentiality obligations do not apply to information that recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully known or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions, or (d) it independently developed without using or refencing Confidential Information.

7.4 Remedies.  Breach of this Section 7 may cause substantial harm for which monetary damages are an insufficient remedy.  Upon breach of this Section, the discloser is entitled to seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction in addition to other remedies.

7.5 Required Disclosures.  The recipient may disclose Confidential Information to the extent required by Laws.  If permitted by Law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.  Notwithstanding such required disclosure, the disclosed Confidential Information shall continue to be treated as Confidential Information between the parties.

8.  Representations and Warranties; Disclaimer.

8.1 General. Each party represents and warrants that: (a) it has the necessary authority to enter into this Agreement; (b) it will comply with all Laws including all applicable anti-corruption laws including, but not limited to, the Foreign Corrupt Practices Act of 1977 of the U.S., as amended and the UK Bribery Act 2010; and (c) it will use appropriate industry standard measures to avoid introducing Viruses into the Subscription Service.

8.2 Limited Warranty for Subscription Service.  Onit warrants that the Subscription Service will operate substantially as described in the Documentation and Onit will not materially decrease the material functionality of the Subscription Service during a Subscription Term (“Performance Warranty”).

8.3 Limited Warranty for Professional Services.  Onit warrants that the Professional Services will be provided in a professional, competent and workmanlike manner (the “Professional Services Warranty”).

8.4 Remedies.  Customer must notify Onit in writing of any alleged failure by Onit to comply with (i) the Performance Warranty  within 30 days of Customer’s discovery of the non-compliance, or (ii) the Professional Services Warranty within 30 days of delivery of the Deliverable (each 30-day period, a “Claim Period”). Once notified, Onit will: (a) use commercially reasonable efforts to cure or correct such failure, and (b) if Onit is unable to cure or correct such failure within a reasonable time period or it is not commercially economically feasible, either party may terminate the Order as relates to the non-conforming Services, in which case Onit will refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). This Section sets forth Customer’s exclusive remedies and is Onit’s sole liability for breach of the Performance Warranty or Professional Services Warranty.   

8.5 Disclaimer.  Customer acknowledges that, as an internet-delivered software application, the Subscription Service may experience periods of downtime, including but not limited to scheduled Maintenance.  EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE IN THIS SECTION 8, ONIT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICE, DOCUMENTATION, PROFESSIONAL SERVICES, DELIVERABLES, ONIT APIS, OR ANY DATA MADE AVAILABLE THROUGH THE SERVICES, WHETHER EXPRESS OR IMPLIED. ONIT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY.  ONIT DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

9.  Liability Limitation; Damages Exclusion.  EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10:  (I) NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE ARISING UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO ONIT UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  THE FOREGOING LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 2 (“FEES AND PAYMENT”) ABOVE. NOTHING IN THIS SECTION 9 SHALL LIMIT THE LIABILITY OF A PARTY FOR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

10.  Indemnification.

10.1 By Onit.  Onit will defend, indemnify and hold harmless Customer and its corporate affiliates, directors, officers, employees, successors, assigns and agents from and against any third party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs and expenses, to the extent such claim, demand or action alleges that the Subscription Services, when used by Customer in compliance with this Agreement, infringes or violates any Intellectual Property Rights of any third party; provided, however, that Onit’s obligations under this Section 10 will not apply to the extent any infringement or violation arises from (a) use of the Subscription Service in combination with technology or services not provided by Onit, if such infringement would have been avoided but for such use, operation or combination, (b) Customer Data, (c) Onit’s compliance with designs, specifications or instructions provided by Customer where those designs, specifications or instructions cause the infringement, or (d) use by Customer after notice by Onit to discontinue use, provided that Onit subsequently refunds amounts paid for the allegedly infringing material after Customer’s discontinuance.  THIS SECTION CONSTITUTES THE ENTIRE LIABILITY OF ONIT, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION ARISING OUT OF THE SERVICES.

10.2 By Customer.  Customer will defend, indemnify and hold harmless Onit and its corporate affiliates, directors, officers, employees, successors, assigns and agents from and against any third party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs and expenses, that arises out of or relates to Customer Data (except to the extent such claim arises from Onit’s use of Customer Data in violation of this Agreement). THIS SECTION CONSTITUTES THE ENTIRE LIABILITY OF CUSTOMER, AND ONIT’S SOLE AND EXCLUSIVE REMEDY, FOR ANY THIRD PARTY CLAIMS RELATING TO CUSTOMER DATA.  In addition, Customer will reimburse Onit for all reasonable internal time, attorneys’ fees and expenses Onit reasonably incurs in relation to subpoenas, depositions, discovery demands and other like inquiries in connection with lawsuits, proceedings, or investigations (whether civil or criminal) in which Customer is a party or subject.    

10.3 Procedures.  The indemnifying party’s obligations under this section are contingent on the indemnified parties: (a) promptly providing written notice of the claim to the indemnifying party, (b) giving the indemnifying party sole control of the defense and settlement of the claim, and (c) providing the indemnifying party, at the indemnifying party’s expense, all reasonable assistance in connection with such claim.  In no event will an indemnified party be liable for any settlement that admits any fault of or imposes any monetary liability on an indemnified party without its prior written consent.  The indemnified party may participate in a claim with its own counsel at its own expense.

10.4 Mitigation.  In response to an infringement or misappropriation claim, if required by settlement or injunction or as Onit determines necessary to avoid material liability, Onit may: (a) procure rights for Customer’s continued use of the Subscription Service, (b) replace or modify the alleging infringement portion of the Subscription Service to avoid infringement without reducing the Subscription Service’s overall functionality, or (c) terminate the affected Order and refund to Customer the pro-rata amount of pre-paid, unused fees for the terminated portion of the Subscription Term calculated from the effective date of termination.

10.5 Exclusive Remedy.  This Section 10 sets out the indemnified party’s exclusive remedy and the indemnifying party’s sole liability regarding third party claims of intellectual property infringement or misappropriation.

11.  General.

11.1 Notices.  All notices under this Agreement must be in writing and sent via confirmed electronic mail.  Notices will be deemed given one (1) business days after being sent with confirmed receipt.  Notices must be addressed: if to Onit, to Attn: Legal, at [email protected]; and, if to Customer, to Attn: Legal at the contact email address set forth on the signature page (or if no email address is provided to the physical address set forth on the signature page in which case notices will be deemed give five (5) business days after being sent).   Onit may also send operational notices through the Subscription Service.

11.2 Assignment.  Either party may assign its rights and obligations under this Agreement to: (i) an Affiliate; (ii) in the event of a change in control; or (iii) to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other party’s consent, provided that: (a) the assignee is solvent or otherwise able to pay its debts as they become due; (b) the assignee is not a competitor of the non-assigning party; and (c) the assignee agrees in writing to be bound by the terms and conditions of this Agreement.  The assigning party provides timely written notice of such assignment to the non-assigning party and any non-permitted assignment is void.  This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

11.3 Publicity. Neither party will use the other party’s name, logo or trademarks in any public communication without the other party’s advance written consent.

11.4 Force Majeure.  Except for the payment of monies due hereunder, neither party is liable to the other for any conditions outside of its control including, but not limited to, failure of a portion of the power grid, failure of the Internet, acts of nature, strikes and other labor disputes, natural disasters such as floods, earthquakes, typhoons and epidemics, wars, government acts, terrorist acts, riots, revolutions, sabotage, or other events of a magnitude or type for which precautions are not generally taken in the industry.

11.5 Governing Law. This Agreement is governed by the internal laws of the State of Delaware, without regard to its conflicts of law rules.

11.6 Internal Dispute Resolution. In the event of any dispute arising out of or relating to this Agreement, the parties will first attempt to resolve the dispute through good faith negotiations between the senior leadership of each party having authority to settle the dispute.  Either party may issue written notice to the other party of an “invitation to negotiate”.  If the dispute is not resolved directly by the parties within 30 days of an invitation to negotiate being issued (unless otherwise extended by mutual written agreement of the parties), then each party is entitled to seek to obtain all remedies available at Law.

11.7 Independent Contractor. Each party is an independent contractor to (and may not act on behalf of or bind) the other.

11.8 Third Party Beneficiaries.  There are no third party beneficiaries to this Agreement.  For clarification, even though an employee of an Affiliate may be a User under this Agreement, an Affiliate may not bring a claim against Onit arising from, based on, or under this Agreement unless such Affiliate has entered into its own Order directly with Onit.

11.9 Export.  Each party (a) will comply with all export and import Laws in performing this Agreement and (b) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or designated by the U.S. government as a “terrorist supporting” country.  Customer will not submit to the Subscription Service any data controlled under the US. International Traffic in Arms Regulations.

11.10 Waiver and Severability. The waiver of any breach of any provision of this Agreement will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of the Agreement remains in effect.

11.11 Counterparts; Electronic Delivery. This Agreement may be executed in counterparts. This Agreement may be executed and delivered via electronic transmission, including utilizing electronic signatures, which will have the same force and effect as if it were executed and delivered by the parties simultaneously in the presence of one another.

11.12 Entire Agreement.  This Agreement, together with the applicable Order or Statement of Work, represents the entire agreement between Onit and Customer with respect to Customer’s use of the Services.  As between Onit and Customer, this Agreement expressly supersedes (i) any terms or conditions stated in a Customer purchase order or similar document, whether submitted or executed before or after the Effective Date, and (ii) any other contemporaneous or prior agreements or commitments regarding the Services or the other subject matter of this Agreement. This Agreement may be updated from time to time by Onit by posting the amended terms which will become applicable to the parties upon the next renewal of the Subscription Term, as applicable, provided that the Order may be modified only in a written amendment or agreement executed by an authorized representative of each party. If there is a conflict between the terms of this Agreement, any Order, the DPA or any amendment to the foregoing, the order of precedence is: (i) any amendment, (ii) the DPA, (iii) the Agreement, and (iv) an Order unless the term(s) set forth in an Order specifically states that it overrides the specific term(s) of the Agreement.