Onyx CTS LLC, Online Terms and Conditions

Effective: 06/24/2019

ONYXCTS, LLC AND/OR ITS AFFILIATES (“ONYX”) AGREES TO PROVIDE PRODUCTS AND SERVICES TO YOU, AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY ORDERING PRODUCTS AND SERVICES FROM ONYX (“CUSTOMER”, “YOU” OR “YOUR”), ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THESE TERMS AND CONDITIONS.

THESE TERMS AND CONDITIONS CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY BEFORE USING THE PRODUCTS OR ACCEPTING THE SERVICES.

THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND ONYX.  BY USING THE PRODUCTS OR ACCEPTING THE PERFORMANCE OF ANY SERVICES PROVIDED BY ONYX, OR BY  CLICKING THE “I HAVE READ AND AGREE TO THE TERMS AND CONDITIONS” ON THE ONLINE ORDER FORM, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, YOU AGREE TO THESE TERMS AND CONDITIONS.

Onyx and Customer shall be referred to collectively as the “Parties”, and each as a “Party”.  In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1.                   Defined Terms.  Capitalized terms not defined herein shall have the meanings assigned to such terms in the Order Form, or any other terms, agreement or addendum incorporated into, and forming a part of, this Agreement.

1.1               “Agreement” means these Terms and Conditions, the Order Form and all other addendums, agreements or terms incorporated by reference herein or therein.

1.2               “Collected Statistics” means data and information related to or arising from Customer’s use of the Products and Services that is collected and/or used by Onyx to compile statistical and performance information related to the provision and operation of the Products and Services, and may include aggregated and anonymized data.

1.3               “Customer Data” means, other than Collected Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer, its employees, representatives or agents, to systems maintained, hosted and used by Onyx in the operation of its business.

1.4               “Documentation” means any and all user’s manuals, installation manuals, release notes, on-line help information, literature or other written materials  relating to the Software and prepared or made available by Onyx or a Third Party Licensor, as may be created or updated from time to time.

1.5               “Intellectual Property Rights” means all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights.

1.6               “Hardware” means third-party products, goods or hardware listed on an Order Form.

1.7               “Order Form” means the online or any other order form incorporating these Terms and Conditions and executed by the Parties, concerning Customer’s subscription to Products or Services.

1.8               “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, association, trust, unincorporated organization or other entity.

1.9               “Products” means Software, Documentation and Hardware.

1.10           “Services” means any services to be performed by Onyx in accordance with this Agreement and set forth on an Order Form or a separate addendum.

1.11           “Software” means programs and/or software subscribed for by Customer and licensed for use by Onyx under this Agreement, as identified in an applicable Order Form, and includes all Documentation related thereto.  Software includes Third Party Software (as defined below).

2.                   Scope of the Agreement.

2.1               Products and Services.  Onyx shall (a) provide to Customer a right and license to use the Software, (b) procure and deliver, if applicable, Hardware, and (c) perform any Services, all as set forth on an Order Form.  The Parties agree that an Order Form contains the detail of specific Products and Services that form an integral part of this Agreement.  The details of the method and manner for performance of the Services by Onyx shall be under its own control, with Customer being interested only in the results thereof.

2.2               Subsequent Order Forms.  New and additional Products and Services may be agreed to pursuant to the terms of this Agreement pursuant to subsequent Order Forms. Additional Order Forms shall be deemed issued and accepted only if signed by both Parties.  Unless the context requires otherwise, any reference herein to this Agreement shall incorporate any subsequent Order Form.

3.                   Use of Software; Support.

3.1               Software License. Subject to the terms and conditions contained in this Agreement, Onyx grants to Customer a limited, non-exclusive, non-sublicensable and non-transferable, limited use license to use, through itself and its employees, and solely for its internal business purposes, the Software and the Documentation during the term of this Agreement.  All use of the Software is subject to any restrictions set forth in an Order Form, or as otherwise set forth in this Agreement.  Customer shall not use the Software in any physical location, hardware, software, system, network or service other than as specified in the Documentation.

3.2               Licensed Units.  Customer’s license to use the Software shall be limited to the Customer sizing information (e.g., unique user accounts, devices, etc.) specifically set forth in an Order Form (the “Licensed Units”).  Onyx shall have the right to charge the Customer an additional fee equal to the Software Price Per Unit, as specified in an Order Form, for each additional unique user account used by Customer above the number of Licensed Units.  Onyx shall have the right to use commercially reasonable means to access and inspect the Products to determine the number of unique user accounts accessing the Software, and may implement industry standard locking mechanisms to ensure that Customer’s use is not exceeding the number of Licensed Units.

3.3               No Transfer of Software. Customer shall not assign, sublicense or otherwise transfer the Software, by operation of law or otherwise, in whole or in part, directly or indirectly.

3.4               Third-Party Software.

(a)                The Products include, and may operate or interface with, software or other technology that is licensed to Onyx from third parties (“Third Party Licensors”), which is not proprietary to Onyx, but which Onyx has the necessary rights to license to Customer (“Third Party Software”).  Third Party Software may also include software licensed by a Third Party Licensor from another third party.  Onyx licenses its primary Software offerings from Sophos Limited (“Sophos”), Check Point Software Technologies Ltd. (“Check Point”) and Cisco Systems, Inc. (“Cisco”), each of which for the purposes of this Agreement are Third Party Licensors, and such licensed Software is Third Party Software.  Customer acknowledges and agrees that Onxy may, from time-to-time, license Software from other Third Party Licensors and thereafter license such Third Party Software to Customer.

(b)                By entering into this Agreement, Customer accepts and agrees to comply with the Third Party Licensors’ end user terms and conditions of use and policies for Third Party Software, as the same may be amended from time to time, including, without limitation, the terms and conditions set forth at https://getonyx.com/third-party-software-terms-and-conditions/ (collectively, the “Third Party Licensor Agreements”).  Copies of the Third Party Licensor Agreements can be viewed, accessed and downloaded using the foregoing link, and physical copies of the agreements will be made available to Customer upon written request, and shall be, at all times, subject to change by the Third Party Licensors.

(c)                Customer hereby agrees that: (i) Customer and will use such Third Party Software in accordance with this Agreement; (ii) Onyx makes no warranties, conditions, undertakings or representations of any kind, either express or implied, to Customer concerning such Third Party Software on behalf of any Third Party Licensor; (iii) such Third Party Software may be licensed under license terms which grant Customer additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this Agreement, and such additional license rights and restrictions may be described or linked to in the applicable Third Party Licensor Agreements, Documentation, the relevant Third Party Licensor’s webpage, or within the Product itself; and (iv) Customer will use Third Party Software in accordance with the terms of the Third Party Licensor Agreements.

(d)                Onyx or a Third Party Licensor may suspend Customer’s license to use, or access to, Software at any time if Onyx or such Third Party Licensor reasonably believes that Customer has violated, or intends to violate, the terms of this Agreement or the terms of any applicable Third Party Licensor Agreements , and Customer agrees to cooperate with Onyx or a Third Party Licensor in the investigation of any such actual or alleged violation.  Customer agrees that any such suspension will not be deemed a breach of this Agreement by Onyx.  Customer agrees to cooperate with Onyx or a Third Party Licensor in the investigation of any actual or alleged violation.

(e)                Customer hereby acknowledges that Third Party Licensors may directly and remotely communicate with Third Party Software in order to provide maintenance and technical support, and to collect information for the purposes of providing the Third Party Software to Customer, evaluating and improving the performance of the Third Party Software, preparing statistical analysis, planning development roadmaps and product lifecycle strategies, and issuing alerts and notices.  The types of information collected by a Third Party Licensor may include, but are not limited to, the following: (a) versions and features of Third Party Software being used; (b) operating systems being used; (c) processing times; (d) customer identification code and company name; and (e) IP address and/or the machine ID which returns the above listed information.  Customer agrees that is use of any Third Party Software is subject to the privacy policy of the applicable Third Party Licensor.

3.5               Software License Exclusions. Except as expressly authorized by this Agreement, Customer shall not, and shall not permit any other Person, to: (a) copy the Software, in whole or in part, or modify, correct, adapt, translate, enhance or otherwise prepare or create derivative works based upon the Software; (b) decompile, disassemble, decode, adapt or reverse engineer the Software, or otherwise attempt to derive or determine the source code or the logic therein except to the extent that such restriction is prohibited by applicable law, in whole or in part; (c) defeat, disable, bypass, breach or circumvent any protection mechanism or security device related to the Software; (d) sell, license, sublicense, lease, rent or distribute to any third-party, or disclose, permit access to, or transfer to any third-party, any portion of the Software; (e) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Software or Documentation; (f) use or allow use of the Software in or in association with safety critical applications such as, without limitation, medical systems, transport management systems, vehicle and power generation applications including but not limited to nuclear power applications; (g) use or allow use of the Products for the purposes of competing with Onyx or a Third Party Licensor, including without limitation competitive intelligence (except to the extent that this restriction is prohibited by applicable law); (h) use the Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (i) introduce or propagate any potentially malicious software code, link, content or attachment (e.g., “back door,” “Trojan horse,” “virus,” “worm,” “malware,” “spyware,” or “trackware”) or any other code, link, content, or attachment that was designed to, intended to, or that actually does disrupt, disable, harm or otherwise impede the operation of, or provide unauthorized access to, any computer or other device or damages or destroys any data or file without consent; or (j) use the Software or Documentation other than for any purpose or application permitted under this Agreement.

3.6               Support of Third Party Software and Hardware.  Onyx will provide technical support of Third Party Products to Customer, to the extent that Onyx receives maintenance and partner support services from Third Party Licensors of such Third Party Products.

3.7               Export Regulation. Customer agrees to comply with all applicable export laws, restrictions and regulations of any United States or foreign agency or authority.  Customer agrees that it shall not export or re-export, or allow the export or re-export by any other Person, of any Software, product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations.  Certain types of software, technology and related documentation are subject to the United States Export Control laws including, but not limited to, the International Traffic in Arms Regulations (ITAR) (22 C.F.R. 120-130 and The Export Administration Regulations (EAR) (15 C.F.R. 730-774).  If and when acting as an exporter pursuant to United States Export Control laws and regulations, Customer agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export or re-export the Software, and to comply with notification and/or registration requirements as may be mandated by United States laws and regulations.

4.                   Fees, Expenses and Payment Terms

4.1               All Fees set forth in each Order Form (the “Fees”) shall be paid by Customer in accordance with the method, frequency  and dates set forth in the Order Form.  Fees indicated on an Order Form as a one-time payment shall become immediately due on the date indicated, regardless of any other general payment terms for Fees.  Fees payable on a monthly, quarterly or annual basis will be payable by Customer on the indicated day of each such month, quarter or year in which such payment is due.  Any other Fees or properly documented expenses separately invoiced by Onyx to Customer will be payable by Customer within thirty (30) days of the date of invoice.

4.2               Except for Fees and expenses that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month, or the highest rate permissible under applicable law, calculated daily and compounded monthly.  Payment to Onyx of Fees due and the reimbursement of related expenses pursuant to this Section 4.1 shall constitute payment in full for the provision of Software and Products and the performance of the Services hereunder.

4.3               Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.

5.                   Change Orders.

5.1               Service Change Orders.  If Customer wishes to change the scope or performance of the Services on any Order Form, it shall submit details of the requested change to Onyx in writing.  Onyx shall, within a reasonable time after such request, provide a written estimate to Customer of the time required to implement the change and any changes to the Fees or other charges arising from the change.  Promptly after receipt of the written estimate, the Parties shall negotiate and agree in writing on the terms of such change. Neither Party shall be bound by any such change unless mutually agreed upon in writing.

5.2               Product Changes and Cancellations.  Any change or cancellation after entry into an Order Form can only be made with the approval of Onyx.  If such change or cancellation results in the return or non-acceptance of any Products, Onyx’s acceptance of such Products shall be in its sole discretion, and if accepted, such Products will be subject to a restocking charge of 25% of the invoice price for such Products.  Onyx will use commercially reasonable efforts to minimize Customer’s cost associated with a change or cancellation, or postponement.

6.                   Term, Termination, and Survival.

6.1               Term and Renewal.  This Agreement shall commence immediately upon Customer’s subscription for Products and Services set forth on any Order Form, and shall continue in effect through the latest Order Subscription Term set forth on any Order Form entered into between the Parties (the “Term”), unless sooner terminated pursuant to Section 6.2.  The Term shall automatically renew for successive one (1) year periods unless written notice of termination is provided by either Party no less than sixty (60) days prior to the end to the then-current Term.  This Agreement shall govern any Order Form entered into by the Parties prior the expiration or termination of this Agreement until all such Order Forms have expired or been terminated.

6.2               Termination.

(a)                Either Party may terminate this Agreement for any or no reason at any time upon thirty (30) days’ prior written notice to the other Party.

(b)                Either Party may terminate this Agreement, effective upon written notice to the other Party, if such other Party: (i) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, such defaulting Party does not cure such breach within fifteen (15) days after receipt of written notice of such breach; or (ii) becomes insolvent, makes a general assignment for the benefit of creditors, becomes subject to any proceeding under any domestic or foreign bankruptcy or insolvency law, or has an agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c)                Onyx may terminate this Agreement, effective upon written notice to Customer, if; (i) Onyx or a Third Party Licensor is unable to provide the Products or Services by reason of any law, rule, regulation, or order of any municipal, state or federal authority; or (ii) if Onyx’s rights to license Third Party Software to Customer terminate or expire.

(d)                Upon any termination under this Section 6.2, Customer shall pay Onyx: (i) Fees for all Services performed and Products received through the effective date of termination; (ii) for all other fees, including, but not limited to, unpaid or prepaid license fees for Third Party Software, paid or payable by Onyx to any third-party in connection with this Agreement, which are not subject to cancellation or refund after the effective date of termination; and (iii) for all approved unreimbursed expenses incurred by Onyx pursuant to this Agreement.

6.3               Effect of Termination.  Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Software and Customer shall delete, destroy, or return all copies of the Software and certify in writing to the Onyx that the Software has been deleted or destroyed.  No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.

6.4               Survival.  The rights and obligations of the Parties set forth in this Section 6 and in Sections 7 (Limited Warranty), 8 (Intellectual Property Ownership), 9 (Confidentiality), 10 (Indemnification) and 11 (Limitation of Liability) and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

7.                   Limited Warranty.

7.1               No Warranty for Third-Party Products.  Onyx makes no warranty and shall have no liability with respect to third-party Products (including Third Party Software) ordered and/or purchased by Onyx on behalf of Customer from third-party suppliers or manufacturers (including Third Party Licensors), and Customer hereby agrees and acknowledges that its sole remedy with respect to any Products ordered and/or purchased shall be those warranties provided by the third-party supplier or manufacturer of such Products, if any.  Any and all issues affecting the Software arising from and through any malfunction, misuse, error or technical issues related to any hardware, system or network component are not the responsibility of Onyx, and shall be resolved by Customer at no cost to Onyx.  Customer shall have no remedy against Onyx for any issues arising from and through any hardware, system or network components.

7.2               ALL PRODUCTS, SERVICES AND/OR DELIVERABLES PROVIDED BY ONYX ARE PROVIDED ON AN “AS IS” “ON AVAILABLE” BASIS.  ONYX AND ANY THIRD-PARTY LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE) CONCERNING THE PRODUCTS, SERVICES, DELIVERABLES , AND MAKE NO WARRANTY OF ANY KIND CONCERNING ANY THIRD-PARTY SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.  ONYX AND ANY THIRD-PARTY LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE.  NO AFFIRMATION OF ONYX, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS SECTION 7.2 WILL CONSTITUTE A WARRANTY.

7.3               CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL DATA IT HOLDS OR MAINTAINS THROUGH THE USE OF THE PRODUCTS AND THAT CUSTOMER SHALL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. ONYX AND ITS THIRD PARTY LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA HELD OR MAINTAINED BY CUSTOMER IS LOST OR CORRUPTED.

8.                   Intellectual Property Ownership.

8.1               Software.

(a)                Except for the rights expressly granted herein, this Agreement does not transfer to Customer any right, title, or interest in or to the Software (including Third Party Software), Documentation, or third-party software underlying the Hardware (the “Proprietary Software”), or any Intellectual Property Right relating thereto.  Onyx, or a Third Party Licensor, as the case may be, shall retain sole and exclusive title to all portions of the Proprietary Software, including any copies thereof or modifications thereto made by any Party.  Customer hereby assigns to Onyx all right, title, and interest in and to any modifications to the Proprietary Software made by or on behalf of Customer, directly or indirectly, whether or not such modifications are permitted under this Agreement.

(b)                Upon learning of any improper or unauthorized possession, use or access to the Proprietary Software by any Person, Customer will (i) notify Onyx immediately, (ii) promptly furnish the details of such occurrence, (iii) assist in preventing any recurrence, and (iv) cooperate fully in any litigation or other proceedings undertaken to protect the Intellectual Property Rights, or any other rights, of Onyx.

(c)                Customer acknowledges and agrees that the unauthorized disclosure or use of the Proprietary Software, or any violation of Onyx’s or a Third Party Licensor’s Intellectual Property Rights in the Proprietary Software will cause immediate and irreparable harm to Onyx or such Third Party Licensor for which money damages cannot adequately compensate.  Accordingly, notwithstanding any other provision of this Agreement, Customer agrees that in the event of any unauthorized disclosure or use of the Proprietary Software, or threat of same, or any other violation or threatened violation of Onyx’s or a Third Party Licensor’s Intellectual Property Rights in the Proprietary Software, Onyx or such Third Party Licensor, as the case may be, will be entitled to obtain immediate injunctive relief from any court or tribunal of competent jurisdiction, without the requirement of posting bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

8.2               Hardware.  If Onyx procures Hardware for or on behalf of Customer, Onyx retains title to the Hardware until such time Customer pays and Onyx receives the Fees for such Hardware in full. Unless and until title to the Hardware has transferred to Customer accordance with this Section 8.2, Customer agrees to keep the Hardware free and clear of all claims, liens, and encumbrances, and any act by Customer, either voluntary or involuntary, purporting to create a claim, lien or encumbrance on the Hardware shall be void. Customer owns only the Hardware or media, if applicable, on which the Software is installed.  In the event that Customer fails to pay or Onyx does not receive the Fees for the Hardware, Onyx may require Customer to return the Hardware to the return location indicated by Onyx, securely and properly packaged, with carriage (and insurance at Onyx’s option) prepaid. If Customer fails to return the Hardware to the indicated location promptly, upon written notice Onyx will be entitled to enter Customer’s premises during normal business hours to repossess such Hardware.  Risk of loss passes to Customer upon shipment of the Hardware to Customer. Customer is solely responsible for complying with any applicable laws and governmental regulations relating to waste, health and safety in connection with Customer’s use, transport and/or disposal of the Hardware.

8.3               Deliverables.  All Intellectual Property Rights in and to all documents, work product, and other materials that are delivered to Customer and prepared by or on behalf of Onyx in the course of performing the Services under this Agreement (collectively, the “Deliverables”), except for any Customer Data and Customer Confidential Information, shall be owned by Onyx.  Onyx hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicenseable basis, limited to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.

8.4               Customer Data.  Onyx acknowledges that, as between Onyx and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to Onyx a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Onyx to provide the Products and Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data (which is not Confidential Information) incorporated within the Collected Statistics.  Customer acknowledges and agrees that Onyx may collect, use, process or maintain Customer Data pursuant to this Agreement, all in accordance with Onyx’s privacy policy at: https://getonyx.com/privacy-policy/.

8.5               Collected Statistics. Notwithstanding anything to the contrary in this Agreement, Onyx may monitor Customer’s use of the Products and Services and collect, compile and use Collected Statistics.  As between Onyx and Customer, all right, title, and interest in Collected Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Onyx.  Customer acknowledges that Onyx may compile Collected Statistics based on Customer Data and Customer’s use of, and input into, the Products and Services.  Customer agrees that Onyx may make use Collected Statistics for Customer’s, its own, and for third-party  Software and Hardware providers’ reporting purposes, and in any manner permitted under applicable law; provided that such Collected Statistics do not identify Customer’s Confidential Information.

8.6               Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Onyx by mail, email, telephone, or otherwise, suggesting or recommending changes to the Products or Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Onyx is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.  Customer hereby assigns to Onyx on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Onyx is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Onyx is not required to use any Feedback.

9.                   Confidentiality.

9.1               Confidential Information.  From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and/or confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 9; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.  This Agreement shall not be deemed Confidential Information.

9.2               Protection of Confidential Information. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any Person, except to the Receiving Party’s employees or agents who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

9.3               Compelled Disclosure.  If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.

10.               Indemnification.

10.1           Indemnity.  Each Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party and its officers, directors, employees, agents, successors and permitted assigns (the (“Indemnified Party”) from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements or similar (“Losses”) awarded against an Indemnified Party in a final judgment arising out of or resulting from any third party claim, suit, action or proceeding (each, an “Action”) arising out of or resulting from: (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from the willful, fraudulent or grossly negligent acts or omissions of the Indemnifying Party; (c) where Customer is the Indemnifying Party, for Customer’s use of the Products; or (c) the Indemnifying Party’s material breach of any representation, warranty or obligation set forth in in Sections 7, 8 or 9 of this Agreement.  Onyx shall have no obligations under this Section 10.1 with respect to Actions to the extent arising out of: (x) any Customer materials or any instruction, information, designs, specifications or other materials provided by Customer to Onyx; (y) use of the Products in combination with any materials or equipment not supplied to Customer or specified by Onyx in writing, if the breach would have been avoided by the use of the Products not so combined; or (z) any modifications or changes made to the Software by or on behalf of any Person other than Onyx.

10.2           Notice; Cost; Control. The Party seeking indemnification hereunder shall 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 shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s sole cost and expense.  The Indemnifying Party shall not settle any Action in a manner that adversely affects the rights of the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnifying Party’s failure to perform any obligations under this Section 10.2 shall not relieve the Indemnifying Party of its obligations under this Section 10.2 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.

11.               Limitation of Liability.

IN NO EVENT SHALL ONYX BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.  IN NO EVENT SHALL ONYX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO 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 ONYX PURSUANT TO THIS AGREEMENT AND ALL ORDER FORMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12.               Miscellaneous

12.1           Entire Agreement; Conflict; Severability; Amendment; Waiver. This Agreement, including and together with the annexes, exhibits and any subsequent Order Forms, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.  No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving.

12.2           Force Majeure. Onyx shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Onyx including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.

12.3           Notices.  All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the Order Form, or to such other address that may be designated by the receiving Party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), certified or registered mail (in each case, return receipt requested, postage prepaid) or by email.  Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section 12.3.

12.4           Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Onyx.  Onyx may, without the consent of Customer, assign any of its rights or delegate any of its obligations under this Agreement to (a) an affiliate; (b) a successor by consolidation, merger, conversion, restructuring or operation of law; or (c) any Person acquiring all or substantially all of its assets.  Any purported assignment or delegation in violation of this Section 12.4 shall be null and void.

12.5           Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.

12.6           Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

12.7           No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

12.8           Compliance with Laws.  Each Party hereby agrees to comply with all applicable laws and regulations in connection with its performance of this Agreement.

12.9           Choice of Law; Forum.  This Agreement will be governed and construed pursuant to the laws of the State of Ohio, without regard to its conflict of laws provisions.  Each of the Parties to this Agreement irrevocably submits to the jurisdiction of Court of Common Pleas of Franklin County, Ohio and the United States District Court for the Southern District of Ohio, and further agrees that any such action or proceeding will be heard and determined exclusively in such court.  Each of the Parties to this Agreement irrevocably waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought, and waives any bond, surety or other security that might be required of the other party with respect thereto.

12.10        Waiver of Jury Trial. Each Party acknowledges that any controversy that may arise under this Agreement, including annexes, exhibits and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments, or appendices attached to this Agreement, or the transactions contemplated hereby.