Version Updated: March 2025

1.     GENERAL.

These Terms and Conditions set forth the terms and conditions pursuant to which you will access and use the Software and Services set forth in the applicable Order. Capitalized terms not otherwise defined in this Agreement have the meaning set forth in line within the text and within the Schedules.

2.     SERVICE AND SOFTWARE LICENSE TERMS.

2.1           Generally. onPhase offers licenses to the software program or programs specifically identified in the applicable Order (the “Software”) and provides access to SaaS Services, Payment Processing Services, Professional Services and any other services specified in the applicable Order (collectively, the “Services”). You have purchased access to the Software, as indicated in the Order, either as: (a) a hosted, annual subscription to the SaaS Service (as defined below) (the “SaaS Subscription”); or (b) as an on-premises, device-based license to the Software (the “Software License”).

2.2           End Users. Only End Users may access or use the Software and Services. Each End User must keep its login credentials confidential, and you will promptly notify onPhase if you become aware of any compromise of any End User login credentials or other unauthorized access to or use of the Software or Services through its or its End Users accounts or login credentials. You are responsible for your End Users’ compliance with this Agreement and any actions taken by your End Users through the Software and Services. You and your End Users will comply with all Laws in your and their activities under this Agreement. You may permit your authorized consultants, suppliers, Affiliates, contractors and agents (“Third-Party Users”) to access and use the Software, but only on your behalf in connection with their provision of services to you, subject always to the Agreement. You are responsible for all Third-Party Users’ actions in relation to the Software and Services. You and your End Users will provide to onPhase, in a timely and accurate manner, and format, all data, documents, and other information reasonably necessary or appropriate for onPhase to provide the Software and Services, and any delays or failures attributable to your failure to provide such information are your sole responsibility and at your sole risk. In the event of any delays in your provision of such necessary assistance, onPhase may adjust any agreed timetable, deadline or delivery schedule as reasonably necessary.

2.3           SaaS Subscription. This Section only applies to SaaS Service.

a.     Access Rights. Subject to the terms and conditions of this Agreement, onPhase hereby grants to you a non-exclusive, non-transferrable (except as set forth in Section 13.4), limited right for your End Users to remotely access and use the Software via the internet through the use of web browser as software-as-a-service (“SaaS Service”) in accordance with the Documentation within your Scope of Use.

b.    Removal; Suspension. onPhase has no obligation to monitor any content uploaded to the SaaS Service but it may do so at its sole election. Nonetheless, if onPhase deems such action necessary based on a determination that you have violated a material provision of this Agreement or in response to reasonably detailed takedown requests received in accordance with Law, then onPhase may (i) remove Your Materials from the SaaS Service; or (ii) to suspend your access to the SaaS Service. onPhase also reserves the right to suspend your access to the SaaS Service: (1) to address technical, security or other emergency issues with the SaaS Service or any Third-Party Materials; (2) there is an unauthorized third party access to the SaaS Service or any Third-Party Materials; (3) if onPhase believes that you have violated any provision of this Agreement, any Third-Party Materials terms to which you have agreed; (4) suspension is required to comply with applicable law, rules and regulations of any applicable networks (as applicable), or requirements of any other financial institution or third-party provider involved in the SaaS Service or Services; or (5) if your actions or inactions endanger the operation of the Software or SaaS Service, other users, the public or onPhase. In such circumstances, onPhase will use commercially reasonable efforts to notify you of the reason(s) for suspension as soon as practicable and promptly reinstate your access to the SaaS Service upon resolution of the issue(s). In no event will onPhase be responsible to you for damages suffered because of a suspension or deletion of Your Materials in accordance with this Section 2.3b. Notwithstanding Section 2.3(b)(3) above, if you have failed to make payment when due under this Agreement, onPhase will provide written notice to you of such failure and will only suspend your account if such failure is not cured within seven (7) days of the date of such notice.

2.4           Software License. This Section only applies to Software purchased under a Software License.

a.     License. Subject to the terms and conditions of this Agreement, onPhase hereby grants to you a non-exclusive, non-transferable (except as set forth in Section 13.4 of the Agreement), personal license during the Term to: (i) install and copy one (1) instance of the Software on one (1) server within your Scope of Use; and (ii) use the Documentation in connection therewith. This license includes the right to retain one (1) copy of the Software and Documentation for backup or archival purposes solely in support of your excise of the license granted herein, provided that all titles, trademark symbols, copyright symbols and legends and other proprietary markings are fully reproduced without modification. If you wish to migrate your instance of the Software from the server where it is originally installed to another server, you are encouraged to contact your onPhase Account Manager and request server migration assistance (which would be billed separately as a Professional Service). You may permit a third party to host the Software solely for the benefit of and access by you and any Third-Party Users, provided that such third party hosting provider agrees to be subject to and bound by this Agreement.

b.             Verification and True-Up.

(i)             Verification. Upon onPhase’s written request no more than one time in each twelve (12) month period you agree to provide onPhase with a signed statement verifying that the Software and Documentation are being used in full compliance with the Agreement and the Scope of Use. If the foregoing verification activity reveals an underpayment of any amounts payable to onPhase, you will promptly remit the full amount of such underpayment to onPhase. You will be responsible for any fees attributable to use in excess of the Scope of Use.

(ii)            True-Up. onPhase reserves the right to conduct a usage analysis (a “True Up”) at any time during the Subscription Term upon written notice to you. If the True-Up reveals that your use of the Software exceeds the consumption thresholds (e.g., Quantity/Monthly Volume) specified in the applicable Order, onPhase will issue a new Order to account for the difference between the quantities purchased and the actual usage. Fees for the excess usage will be detailed in the new Order, and you agree to pay such fees in accordance with the payment terms outlined in Section 5.2.

2.5           Other Services. onPhase will perform (i) Support Services, and (ii) any Professional Services, Payment Processing Services and other Services set forth in an applicable Order, pursuant to this Agreement and any additional terms provided in Schedule 2 to this Agreement, including without limitation, any Payment Processing Terms, if applicable (the “Product Terms”) for the Subscription Term. In the event of a conflict between the Product Terms and these Terms and Conditions, the Product Terms will control.

2.6           Change Orders. You may submit written request(s) to onPhase to change the scope or performance of the Services described in an Order, but subscription amounts may never be decreased. onPhase will, within a reasonable time after its receipt of your request, provide you with a written estimate of: (a) the likely time required to implement the change; (b) any necessary variations to the Fees and other charges for the Services arising from the change; (c) the likely effect of the change on the Services; and (d) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties will negotiate in good faith the terms of such change, including a reasonable and equitable adjustment to the Fees or work schedule, as applicable (each a “Change Order”). Neither party will be bound by any Change Order unless and until it is mutually agreed upon in writing.

2.7           Professional Services Additional Terms.

a.              Generally. The parties may from time to time during the Term agree to execute one or more Orders that include Professional Services. Unless otherwise agreed by the parties, each Order will describe: (a) the Professional Services to be performed and any related Deliverables; (b) your responsibilities in connection with such delivery; and (c) the anticipated delivery date(s) and Fees for the Professional Services.

b.             Ownership. Pursuant to the applicable Order, onPhase may develop or provide documents, work product, and other materials that are delivered to you in the course of performing the Professional Services (collectively, “Deliverables”). As between you and onPhase, all right, title, and interest in and to the Deliverables, including all Intellectual Property Rights therein, are and will remain with onPhase. You have no right, license, or authorization with respect to any of the Deliverables except as expressly set forth in Section 2.7(c).

c.              Access to Deliverables. Unless otherwise set forth in the applicable Order and subject to your compliance with the terms and conditions of this Agreement, onPhase hereby grants you during the Term a limited, nonexclusive, non-transferable, non-sublicensable right to access and use the Deliverables during the Term solely for your internal business purposes.

2.8           Support Services Additional Terms.

a.              Generally. onPhase will provide, as described in an Order, the following availability, maintenance and support services to you (“Support Services”):

(i)             SaaS Availability. Except as otherwise provided in an Order, onPhase will use commercially reasonable efforts to keep the SaaS Service operational on a 24/7 basis except for planned downtime, scheduled or emergency maintenance or any unavailability caused by circumstances beyond onPhase’s reasonable control including, but not limited to, Force Majeure Events, and any Internet service provider failures or delays or availability issues (including downtime or service outages). onPhase may, but is not obligated to, provide you with prior notice of any scheduled or emergency maintenance.

(ii)            Maintenance Schedule and Technical Support. Most maintenance and upgrade activities are scheduled to occur during low peak hours as reasonably determined by onPhase with reference to its customer service metrics. The extent of new features or functionality available following such maintenance or upgrade activity will depend on your then-current Software or SaaS Service subscription entitlement. onPhase Support Services are provided to onPhase customers only. You are responsible for providing first line support to your End Users. Within thirty (30) days of the effective date of the applicable Order, you must provide onPhase with the name and contact information for no more than three (3) named contact(s) authorized by you to access the Support Services and submit support cases. Your authorized contact(s) may be changed on written notice to onPhase. Details regarding onPhase maintenance and support are available here: Subscription Maintenance & Support - onPhase.

3.     Use LimitATIONS; Rights Reserved.

3.1           Use Limitations. You will not (and not permit anyone else to, either directly or indirectly): (a) modify, translate, or create derivative works based on any element of the onPhase Technology; (b) encumber, transfer, rent, donate, assign, lease, or otherwise use the onPhase Technology in any time-sharing or service bureau arrangement; (c) lease, license, sell, resell, sublicense, assign, or otherwise transfer your access to or use of the onPhase Technology or otherwise provide the benefit of use of the Services or Software to any third party; (d) use the onPhase Technology to process data of any non-subscriber third party for a fee or any other consideration; (e) market, sell, distribute, sublicense, manufacture, or otherwise commercially exploit the onPhase Technology; (f) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the onPhase Technology, including the use of any similar means to discover the source code of the onPhase Technology or to discover the Confidential Information therein; (g) publish or disclose to third parties any evaluation of the onPhase Technology without onPhase’s or any required third party’s respective prior written consent; (h) alter or remove any printed or on-screen copyright, trademark, patent, proprietary, or other legal notice contained on or in any onPhase Technology and will cause all such notices to be reproduced on all copies thereof; (i) use or permit the use of the onPhase Technology other than for its intended purpose, including without limitation, in a manner: (1) contrary to applicable Law; (2) that infringes, violates or misappropriates the rights of any third parties, including the privacy rights or Intellectual Property Rights of such parties; or (3) that is unlawful, harassing, defamatory (untrue and damaging to others), abusive, threatening, or obscene; (j) use, or permit any unauthorized access to, onPhase or End User Confidential Information except as expressly permitted under this Agreement; or (k) make any representations, warranties, guaranties, indemnities, similar claims, or other commitments, actually, apparently, or ostensibly on behalf of onPhase or any providers of Third-Party Materials that are additional to or inconsistent with the terms and conditions of this Agreement or the terms and conditions governing any such Third-Party Materials.

3.2           Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, onPhase reserves all right, title and interest in and to the onPhase Technology, and any software or services used in relation to the onPhase Technology, including all Intellectual Property Rights therein. Except as expressly set forth in Section 2, all right, title, and interest in and to the onPhase Technology, and all service marks, trademarks, trade names, and logos of onPhase, together with all suggestions, contributions, or modifications thereto and copies of all of the foregoing, will remain in possession of onPhase and its licensors.

4.     Ownership.

4.1           onPhase Ownership. onPhase and its licensors are, and will remain, the sole and exclusive owners of all right, title, and interest in and to all Intellectual Property Rights in the onPhase Technology, except as otherwise expressly set forth in an applicable Order. You have no title to, ownership of, or any Intellectual Property Rights whatsoever in, any of the onPhase Technology or any improvements thereto developed by onPhase in connection with the Services.

4.2           Your Ownership. You and your licensors are, and will remain, the sole and exclusive owners of all right, title, and interest in and to Your Material, including all Intellectual Property Rights therein. You grant to onPhase the right and license to use Your Material to provide the Services.

4.3           Limited Feedback License. You hereby grant to onPhase, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under your Intellectual Property Rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Services or Software, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Software or any other products or services. You provide any Feedback “as is” without warranty of any kind.

5.     FEES AND PAYMENT TERMS.

5.1           Fees. You agree to pay onPhase a fee for the SaaS Service or the Software License, as applicable (the “Subscription Fees”), in the amount and according to the terms set forth in the applicable Order. You agree to pay onPhase a fee for the Services provided under this Agreement (“Services Fees” and with the Subscription Fees, the “Fees”) in the amount and according to the terms set forth in the applicable Order. Unless otherwise set forth in the applicable Order, any pre-paid Fees for Professional Services will expire twelve (12) months after the effective date of the applicable Order, after which all unused hours or fees in relation thereto will be forfeited. During the Term, onPhase reserves the right to adjust pricing for the Fees on an annual basis, which will be effective on the next anniversary of the effective date of an applicable Order, in an amount such that the total Fees do not exceed the greater of: (a) three percent (3%) of the then-existing Fees; or (b) the percentage increase, if any, in the U.S. Consumer Price Index for All Urban Consumers (CPI-U), U.S. City Average, All Items, Not Seasonally Adjusted, as published by the U.S. Bureau of Labor Statistics for the most recent twelve (12) month period available prior to the next anniversary date of an applicable order. Any such increase in Fees will not affect amounts paid or payable by you prior to the next anniversary of an applicable Order.

5.2           Payments. Fees are non-cancellable and non-refundable except if you terminate for an uncured material breach by onPhase in which case onPhase will refund you: (i) the amount of any pre-paid Subscription Fees on a pro-rata basis, calculated from the effective date of termination; and (ii) the amount of any pre-paid but undelivered Services Fees as of the effective date of termination, calculated in reference to the milestones or deliverables set forth in the applicable Order. Unless otherwise set forth in the applicable Order, Subscription Fees will be paid annually in advance. Unless otherwise set forth in the applicable Order, all Services Fees are due thirty (30) days from your receipt of an onPhase invoice. All Fees paid, and expenses reimbursed under this Agreement, are in USD. Fees and expenses payable by you pursuant to this Agreement may not be withheld or offset by you against other amounts for any reason.

5.3           Expenses. You will reimburse onPhase for all reasonable travel and expenses incurred by onPhase in connection with the performance of the Professional Services, provided that such travel and expenses have been approved by you in advance of being incurred. All expenses will be in accordance with the onPhase Travel Policy, a copy of which is available upon request.

5.4           Late Fees. You agree to pay a late fee of two percent (2%) per month (not to exceed the maximum allowed under applicable Law) on all balances not paid when due.

5.5           Taxes. The Fees and other amounts quoted in the Order do not include tax. You are responsible for paying all governmental sales, use, withholding, excise, value added, ad valorem taxes, or duties imposed on your access to and use of the Services, other than taxes based on onPhase’s net income or profits. To the extent that onPhase is required to collect such taxes, the applicable tax will be added to your invoice. If you are exempt from the payment of taxes, you must provide onPhase with an original certificate that satisfies applicable legal requirements. Tax exemption will only apply as of the date that such certificate is provided.

6.     Your OBLIGATIONS.

6.1           Technical Requirements. You are responsible for procurement and maintenance of the equipment, software, and internet access required to be able to access and use the Software. Acquiring, installing, maintaining, and operating equipment and internet access is solely your responsibility. onPhase does not represent or warrant that the SaaS Services will be accessible through all web browser releases.

6.2           Use of Software and Services. You will not, and will not permit others, in using the Software or Services to: (a) publish, ship, distribute, or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability; (b) engage in any conduct that could violate applicable Law, constitute a criminal offense or give rise to civil liability for onPhase; (c) misrepresent or in any other way falsely identify your identity or affiliation, including through impersonation or altering any technical information in communications using the Software or Services; (d) transmit or upload any material through the Software or Services containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing onPhase’s, or any other person’s or entity’s, network, computer system, or other equipment; (e) interfere with or disrupt the Software, Services, networks, or servers connected to the onPhase systems or violate the regulations, policies, or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Software; (f) attempt to gain unauthorized access to the Software, Services, other onPhase customers’ computer systems, or networks using the Software through any means; or (g) interfere with another party’s use of the Software. onPhase has no obligation to monitor your use of the Software. However, onPhase reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable Law.

6.3           Services.

a.     Access and Assistance; Your Material. You will provide such access to your premises, facilities, and computer systems and networks as may reasonably be requested by onPhase for the purposes of performing the Services. You will respond promptly to any onPhase request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for onPhase to perform the Services. You will timely provide Your Materials as set forth in the applicable Order or as onPhase may reasonably request in order to carry out the Services and confirm that Your Materials are complete and accurate in all material respects.

b.    Delay in Performance. If onPhase’s performance of its obligations under this Agreement is prevented or delayed due to any action or failure to act by you or your agents, subcontractors, consultants, or employees, onPhase will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by you, in each case, to the extent arising directly or indirectly from such prevention or delay. If such delay disrupts onPhase’s project scheduling, onPhase reserves the right to move your project to the back of its project queue, which may result in significant additional delays. If such prevention or delay on your part results in additional work or incremental costs to onPhase, onPhase reserves the right to charge you additional Fees, as reasonably determined by onPhase.

6.4           Data Usage.

a.     License. Subject to this Agreement, you grant onPhase a non-exclusive, worldwide right to use, copy, store, transmit, display (privately, and not publicly) and modify Your Materials solely to the extent necessary to provide, support and maintain the Software and Services.

b.    Warranty. You represent, warrant and covenant that you have made all legally-mandated disclosures and have obtained and will maintain all rights, consents and permissions as necessary or required to legally use Your Materials with the Software and Services and grant onPhase the rights in Section 6.4, all without violating or infringing third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to Your Materials.

c.     Prohibited Data. Except as expressly permitted in the applicable Order or otherwise agreed to by onPhase in writing, you will not transfer to onPhase any of the following categories of data: (i) biometric or genetic data, including but not limited to sensitive identifiable human subject research, or health or medical information/data covered by the Health Insurance Portability and Accountability Act (HIPAA); (ii) education records, student loan application or financial aid information or any data covered by the Family Educational Rights and Privacy Act (FERPA); or (iii) debit or credit card numbers or information covered by Payment Card Industry Data Security Standard (PCI DSS) standards (collectively, “Prohibited Data”). You will be solely responsible and liable for your provision to onPhase of any Prohibited Data, and will defend, indemnify, and hold harmless onPhase from and against any claims and losses (including attorneys’ fees) arising out of your provision to onPhase of Prohibited Data. You will reimburse onPhase for any reasonable expenses that onPhase incurs as a result of your provision to onPhase of Prohibited Data, including but not limited to expenses incurred as the result of an audit, to secure Prohibited Data, or to remove Prohibited Data from onPhase’s systems.

6.5           Third-Party Materials. By accessing or using the Software and Services, you may be granted access to third party products, services, or materials (collectively, the “Third-Party Materials”). These Third-Party Materials may be governed by separate terms and conditions, which you may be required to review and accept before accessing or using the Software and Services. onPhase may, but is not required to, identify Third-Party Materials in this Section 6.5 by providing a list to you or may provide an online list of Third-Party Materials, including links to relevant terms and conditions for such Third-Party Materials, in an updated form available on onPhase’s website (the “Third-Party Materials List”). The Third-Party Materials List is subject to change, and onPhase reserves the right to update or modify the Third-Party Materials List in its sole discretion. Your continued use of Third-Party Materials will be governed by the most current version of the corresponding terms and conditions, whether or not the foregoing are included on the Third-Party Materials List, and you acknowledge and agree to any updated terms and conditions of the Third-Party Materials. onPhase is not responsible for the content, functionality, or availability of any Third-Party Materials.

7.     Security.

7.1           Security. onPhase will deploy commercially reasonable security precautions designed to protect against unauthorized access to Your Materials stored by onPhase in connection with your or your End Users’ operation of the Software. onPhase will exercise reasonable efforts to deploy corrections within the Software or make updates available to you for security breaches made known to onPhase.

7.2           SOC Reporting. onPhase completes an annual independent audit of internal control policies, procedures, security and availability, which is conducted (and report issued) by an accredited third-party firm (each, a “SOC Report”). The SOC Report will be delivered to you on an annual basis at no cost upon request and will be deemed the Confidential Information of onPhase.

7.3           No Circumvention of Security. Neither you nor any End User may circumvent or otherwise interfere with any user authentication or security of the Software. You will immediately notify onPhase of any breach, or attempted breach, of security known to you.

8.     NON-DISCLOSURE AND CONFIDENTIALITY.

8.1           Disclosure. Each party may disclose to the other party certain Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. “Confidential Information” means any non-public or proprietary information that is of value to its owner and is treated as confidential, including without limitation, trade secrets, technology, information pertaining to business operations and strategies, information pertaining to customers, pricing, and marketing, and the terms of this Agreement which is either marked as confidential or proprietary or by its nature can reasonably be expected to be confidential or proprietary, whether presented in oral, printed, written, graphic or other tangible form; “Disclosing Party” refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Receiving Party” refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Receiving Party’s employees or agents.

8.2           Requirement of Confidentiality and Non-Use. The Receiving Party agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates’ officers, employees, consultants, and legal advisors who have a “need to know,” who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 8; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under the Agreement; and (c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. The obligations in this Section 8 will survive termination and continue for so long as the applicable information constitutes Confidential Information. Confidential Information will not include information that: (w) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (x) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (y) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (z) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.

8.3           Compelled Disclosure. If the Receiving Party becomes legally required to disclose any Confidential Information, the Receiving Party will provide: (a) prompt written notice of such requirement (if legally permissible) so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose no more than that portion of the Confidential Information which the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

8.4           Data Use. You agree that data derived by onPhase from onPhase’s performance of the Services or input by you may be used by onPhase for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, improvement and troubleshooting of the Software and Services and creation of statistical rules and de-identified versions of such data. The results of such de-identification (“De-identified Data”) may be used by onPhase for any lawful purpose, including making such De-Identified Data publicly available. Notwithstanding anything contained in this Agreement, De-identified Data will not contain (i) any information that identifies or can be reasonably used to identify an individual person, or (ii) any information that identifies or can be reasonably used to identify you, your Affiliates or your suppliers.

8.5           Return of Confidential Information. Each party agrees to promptly return all the other party’s Confidential Information at the Disclosing Party’s request or, at the Disclosing Party’s option, certify the destruction of such material.

9.     LIMITED WARRANTY; DISCLAIMER.

9.1           Limited Warranty. onPhase warrants that during the applicable Subscription Term, the Services and Software will, under normal use and service, substantially conform to, and perform in all material respects with, the functions described in the applicable Documentation. If any such Services or Software fail to comply with the foregoing warranty, you will provide written notice to onPhase prior to the expiration of the warranty period set forth above, which must describe in reasonable detail the nature of the non-conformity. In such event, onPhase will use reasonable efforts to repair or rectify such non-conformity. If onPhase is unable to repair or rectify such non-conformity, then onPhase may terminate this Agreement (including without limitation the licenses granted in this Agreement) with respect to the non-conforming Services or Software and in such event, onPhase will refund to you on a pro-rata basis, as applicable, the portion of Fees paid to onPhase prior to termination applicable to the access and use of such non-conforming Services after the termination date. THE REMEDY SET FORTH IN THIS SECTION WILL BE YOUR SOLE AND EXCLUSIVE REMEDY AND ONPHASE’S SOLE OBLIGATION FOR ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.

9.2           Exclusions. The warranty set forth in Section 9.1 does not cover defects or non-conformities arising from (a) use of the Software or the Documentation not authorized in this Agreement; (b) any modification to the Software made by any person or entity other than onPhase that is not previously approved by onPhase; (c) any use of the Services or Software by you or your End Users beyond the scope of the express rights licenses granted in this Agreement; (d) any use of the Services or Software in combination with other software, hardware or data; or (e) onPhase’s compliance with your request for changes to the onPhase Technology or with your designs, specifications or instructions.

9.3           Mutual Representations and Warranties. Each party represents, warrants and covenants to the other party that: (a) such party has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) such party’s execution of and performance under this Agreement will not breach any oral or written agreement with any third party or any obligation owed by such party to any third party to keep any information or materials in confidence or in trust.

9.4           Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 9, THE ONPHASE TECHNOLOGY IS PROVIDED “AS-IS” AND ONPHASE EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING: (I) ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY ONPHASE; AND (II) NO WARRANTY IS MADE THAT USE OF THE SERVICES, ONPHASE TECHNOLOGY OR ANY DELIVERABLES, WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES, ONPHASE TECHNOLOGY OR DELIVERABLES, WILL BE CORRECTED, OR THAT THE FUNCTIONALITY OF THE SERVICES, ONPHASE TECHNOLOGY OR DELIVERABLES WILL MEET YOUR REQUIREMENTS. OnPhase is not liable for any losses, damages, or costs that YOU may suffer arising out of or relating to hacking, tampering, or other unauthorized access or use of the Services, YOUR ACCOUNT OR YOUR MATERIALS, or YOUR failure to use or implement anti-fraud or data security measures. ONPHASE is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside ONPHASE’S control. YOU may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period. ONPHASE IS NOT LIABLE FOR ANY THIRD-PARTY CONTENT ACCESSIBLE THROUGH THE ONPHASE TECHNOLOGY. THE SOFTWARE (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS OR BUGS AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS. ACCORDINGLY, FROM TIME TO TIME, YOU MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE SOFTWARE. YOU WILL PUT IN PLACE REASONABLE INTERNAL PROCEDURES AND PROCESSES TO ENABLE YOURSELF TO MINIMIZE ANY INCONVENIENCE AND ANY ADVERSE IMPACT OF ANY SUCH DOWNTIME OR ERROR.

10.  LIMITATION OF LIABILITY.

10.1       Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL (A) ONPHASE AND ITS AFFILIATES, SUBSIDIARIES, THIRD-PARTY SERVICE PROVIDERS, DIRECTORS, OFFICERS, AGENTS AND ASSIGNS, WITH RESPECT TO ANY THIRD-PARTY MATERIALS, OR (B) EITHER PARTY, AND ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, AGENTS AND ASSIGNS, BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, GOODWILL, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2       Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL EITHER PARTY’S, AND ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, AGENTS AND ASSIGNS’, LIABILITY UNDER THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO ONPHASE BY YOU PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10.3       Exceptions. The exclusions and limitations in Section 10.1 and Section 10.2 will not apply to: (a) the license limitations set forth in this Agreement, including those in Section 3.1, Section 3.2; and Section 6.2; (b) breaches of Section 8 (except for claims, losses or damages against onPhase arising from or related to a data breach or security incident involving any personally identifiable information contained in Confidential Information, which will remain subject to Sections 10.1 and 10.2); (c) a party’s obligations under Section 11; (d) a party’s willful misconduct, gross negligence or fraud.

11.  INDEMNIFICATION.

11.1       onPhase Indemnification. Subject to Section 11.3, onPhase will indemnify, defend, and hold harmless you, your Affiliates, and your and their respective officers, directors, managers, employees, agents, successors, and permitted assigns against any third party claim, suit, action, or proceeding (each, an “Action”) based on a claim that the Software or Services infringe or misappropriate any Intellectual Property Right, and will pay all settlements entered into and damages awarded against the such indemnitee (including reasonable outside counsel fees, if any only if onPhase fails to take sole control of such Action as provided in Section 11.3) to the extent based on such an Action; provided, however, that onPhase will have no obligations under this Section 11.1 with respect to claims to the extent arising out of: (a) any express instruction, information, designs, specifications, or other materials provided by you to onPhase; (b) use of the Software or Services in combination with any materials, software, or equipment not supplied to you or specified by onPhase in writing; or (c) any modifications made to the Software or Services by or on behalf of any person or entity other than onPhase. If the Software or Services, or any part thereof, become, or in the opinion of onPhase may become, the subject of a claim of infringement or misappropriation, onPhase may, at its option: (i) procure for you the right to use such Software or Services free of any liability; (ii) replace or modify the Software or Services to make it non-infringing; or (iii) terminate this Agreement and refund to you any portion of the Fees prepaid by you for the infringing Software or Services. THE FOREGOING STATES THE ENTIRE LIABILITY OF ONPHASE WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES OR SOFTWARE OR OTHERWISE, AND YOU HEREBY EXPRESSLY WAIVE ANY OTHER LIABILITIES OR OBLIGATIONS OF ONPHASE WITH RESPECT THERETO.

11.2       Your Indemnification. Subject to Section, 11.3, you will indemnify, defend and hold harmless onPhase, its Affiliates and their respective officers, directors, employees, agents, successors, and permitted assigns against all Actions arising from or related to a claim that: (a) you have violated any applicable Law; (b) you have breached or alleged to have breached Sections 3.1, 3.2, or 6.2; or (c) that Your Materials infringe or misappropriate any Intellectual Property Right, and will pay all settlements entered into and damages awarded (including any reasonable outside counsel fees, if any only if you fails to take sole control of such Action as provided in Section 11.3) against onPhase to the extent based on such an Action.

11.3       Indemnification Procedures. The indemnifying party will solely control the defense and settlement of the applicable Action. The party seeking indemnification will promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party will immediately take control of the defense and investigation of the Action and will employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party will not settle any Action in a manner that requires the indemnified party to pay monies or admit liability or subjects the indemnified party to any ongoing affirmative obligation without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 11.3 will not relieve the indemnifying party of its obligations under this Section 11 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.

12.  TERM AND TERMINATION.

12.1       Agreement Term. This Agreement will commence on the effective date of the applicable Order and will continue until the later of (a) the completion of and payment for all Software and Services under all Orders or (b) the expiration of the last Subscription Term under this Agreement, unless earlier terminated as provided for below (both, the “Term”).

12.2       Subscription Term. The Subscription Term for the applicable Software and/or Services will be set forth in the applicable Order, unless earlier terminated as provided for below. For clarity, failure to use the onPhase Technology as of the date that the Subscription Term commences (the “subscription term start date” per the applicable Order) will not be deemed a basis for disputing or refusing to pay all applicable Fees. The Subscription Term will automatically renew upon expiration and the term of the applicable Order will be extended for successive one-year renewal terms (each, a “Renewal Term”) at onPhase’s then-current list price, unless either party provides written notice of non-renewal at least one hundred and eighty (180) days’ prior to expiration of the preceding period of the Subscription Term.

12.3       Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, each party will have the right to terminate this Agreement or an Order: (a) if the other party commits a material breach of this Agreement, the applicable Order, and such breach remains uncured thirty (30) days after written notice of such breach is delivered to such other party; (b) if the other party makes an assignment for the benefit of creditors or commences or has commenced against it any proceeding or petition in bankruptcy, insolvency, or reorganization pursuant to bankruptcy or similar Laws, and such proceeding or petition is not removed within ninety (90) days; or (c) the other party discontinues its business.

12.4       Effect. Termination of an Order will not effectuate a termination of this Agreement or otherwise affect any other outstanding Order unless no other Orders remains outstanding, in which case this Agreement may terminate pursuant to Section 12.1. Upon expiration or termination of this Agreement for any reason, (a) all outstanding Orders and all license rights granted under this Agreement will terminate; (b) all rights, licenses, and access to the Software granted by onPhase to you under this Agreement or such Order, as applicable, will immediately cease; and (c) unless otherwise deleted by you prior to termination, Your Materials will be retained in the Software for seven (7) days and permanently deleted thirty (30) days thereafter.

12.5       Survival. The rights and obligations of the parties set forth in this Section 12.5 and Sections 3.1, 3.2, 4, 5, 6.5, 8, 9.4, 10, 11, 12.4 and 13, will survive any such termination or expiration of this Agreement according to their respective terms.

13.  GENERAL. 

13.1       Governing Law. This Agreement will be governed by and construed exclusively in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (other than New York General Obligations Law Sections 5-1401 and 5-1402). The United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to this Agreement or the parties. Each party irrevocably submits to the exclusive jurisdiction of the courts of the State of New York for the purpose of any suit, Action or other proceeding arising out of this Agreement. Each of the parties hereby waives the right to: (a) trial by jury of any suit, Action or proceeding; and (b) participate in a class action relating to this Agreement.

13.2       Conflicting Terms. Notwithstanding the content of your purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement will govern and any conflicting, inconsistent, or additional terms contained in such documents will be null and void.

13.3       Notice. All communications required or otherwise provided under this Agreement will be in writing and will be deemed given when (a) delivered by hand or (b) delivered or rejected upon delivery by a nationally recognized overnight courier service to the address set forth on the Order, as may be amended by the parties by written notice to the other party in accordance with this Section 13.3. Notice is effective upon delivery to the notice address (or rejection thereof).

13.4       Assignment. Neither party may assign or transfer this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided that either party may assign the Agreement without consent to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation, or asset acquisition. Any attempted assignment, transfer, or other conveyance in violation of the foregoing will be null and void. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns.

13.5       Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.

13.6       Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.

13.7       Amendments. This Agreement may only be amended or modified by an agreement in writing signed by each party; provided, however, that, except as otherwise agreed to by the parties in the applicable Order, you agree that any Renewal Term will be subject to the then-current version of these Terms and Conditions, as available at the link set forth in the applicable Order. Alternatively, onPhase may specify that a modification to the Terms and Conditions will take effect during your then-current Subscription Term, following a reasonable notice period; in this case, if you notify onPhase in writing of your objection to the modifications prior to the specified effective date, onPhase will allow you (as your exclusive remedy) to terminate any affected Order and receive a refund of any pre-paid, unused fees for the terminated portion of the applicable Subscription Term for the Order. For the avoidance of doubt, modifications to Terms and Conditions or Product Terms under this Section 13.7 that are not mutually agreed in writing will not materially decrease the overall functionality, security, or privacy of the Software and Services. Continued use of the Software and Services by you after the effective date of the modification will constitute your acceptance of the modified terms.

13.8       Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.9       Subcontractors. onPhase may use Affiliates and subcontractors and permit the foregoing to exercise onPhase’s rights, but onPhase remains responsible for its and its Affiliates and subcontractors’ overall performance under this Agreement.

13.10    Force Majeure. Neither party will be liable for any loss or damage resulting from the delay or failure to comply with this Agreement to the extent that such delay or failure is caused, directly or indirectly, by circumstances beyond that party’s (“Impacted Party”) reasonable control, including but not limited to the following force majeure events (“Force Majeure Events”): Acts of God; pandemic, epidemic, outbreak of disease; flood, fire, earthquake or explosion; war, invasion, hostilities (whether war is declared or not), terrorist acts, riot or other civil unrest; government order or Law; actions, embargoes or blockades in effect on or after the effective date of the applicable Order; action by any governmental authority; national or regional emergency; strikes, labor stoppages or slowdowns or other industrial disturbances not caused by the Impacted Party’s own employees; or shortage of adequate power or transportation facilities. The Impacted Party will give notice within ten (10) days of the Force Majeure Event to the other party, of the nature and duration of the Force Majeure Event and resume performance as soon as reasonably possible. If any condition constituting a Force Majeure Event continues for a period twenty (20) calendar days, the party not claiming the Force Majeure Event may terminate this Agreement upon five (5) calendar days’ written notice. In the event that either party terminates the Agreement as a result of the Force Majeure Event, neither party will be liable for any loss or damage resulting from the termination.

13.11    Equitable Relief. Each party acknowledges that a breach by a party of Section 2.7 or Section 8 may cause the non-breaching party (including any third party beneficiary expressly identified in this Agreement) irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching and injured party (including any third party beneficiary expressly identified in this Agreement) will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which it may be entitled at Law or in equity. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available at Law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

13.12    No Third-Party Beneficiaries. Except as may be provided in a Schedule attached hereto, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

13.13    Relationship of Parties. Nothing in this Agreement will constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party will have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.

13.14    Publication. You agree that onPhase may disclose your name, logo and tradename in a factual listing of its customers, in any media, whether printed, electronic or on-line. For avoidance of doubt, onPhase will not use such materials for any other purpose without your explicit consent.

13.15    No Contingencies. The Software and Services in each Order are purchased separately and not contingent on purchase or use of other onPhase products and services (even if listed in the same Order). Your purchases are not contingent on delivery of any future functionality or features.

SCHEDULE 1
DEFINITIONS

1.     “Affiliate” means, with a respect to a party, any entity that directly or indirectly controls, is directly or indirectly controlled by or directly or indirectly is under common control with such party, where “control” means the ownership of, or the power to vote, directly or indirectly, more than fifty percent (50%) of an entity’s shares or voting rights or the ability to control and direct the management or policies of that entity.

2.     “Change of Control” means: (a) the consolidation or merger of one entity with or into any other entity; (b) the sale, transfer, or other disposition of all or substantially all of the assets of one entity or its Affiliates to a third party; or (c) acquisition by any entity, group, or group of entities acting in concert, of control of an entity (as control is defined above under the definition of Affiliate).

3.     “Documentation” means the online user guides, documentation and help and training materials published on the onPhase website or accessible through the Services, as may be updated by onPhase from time to time.

4.     “End User” means, as applicable, any of your individual users and any Third-Party User permitted or invited to use the Software or Services by you.

5.     “Fees” means the Subscription Fees, Professional Services Fees and all other fees to be paid as expressly set forth in this Agreement.

6.     “Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how and other Confidential Information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

7.     “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

8.     “Material Event” means any event which (a) could have a material adverse effect on the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects, of the entity; (b) any Change of Control; (c) any change in the name, nature of business or risk rating of the entity; (d) the occurrence of any data breach with respect to such entity; and (e) the occurrence of any regulatory examination of any such entity outside of the ordinary course.

9.     “onPhase Technology” means the Services (including the Software), Documentation, onPhase Confidential Information, and all Intellectual Property Rights in or related to all of the foregoing.

10.  “Payment Processing Services” means onPhase’s payment processing services as referenced in the applicable Order, if applicable.

11.  “Professional Services” means those consulting, integration, configuration, implementation, and similar services more particularly set forth on an Order.

12.  “Scope of Use” means your authorized scope of use for the Software and Services specified in the applicable Order, which may include: (a) number and type of End Users, (b) numbers of licenses, copies or instances or (c) entity, division, business unit, website, field of use or other restrictions or billable units.

13.  “Subscription Term” means the term so identified in the applicable Order for the SaaS Service or the Software License, as indicated in the applicable Order.

14.  “Your Material(s)” means the data or information that you upload or create while using the Services.