OnRamp Master Agreement (Partner)
Last Updated: September 1, 2023
1. Services; Licenses.
1.1 From time to time, Partner may request and OnRamp may agree to perform services and provide licenses, each as agreed in an order form in the form attached hereto as Exhibit A (each, an “Order Form”). The services described in an Order Form (the “Services”) shall be performed and the Licenses (defined below) shall be provided subject to the terms and conditions set forth in the Agreement and such Order Form. In the event of a conflict between any Order Form and this Agreement, this Agreement shall prevail unless an Order Form specifically states the Section of the Order Form that will take precedence over a specific Section of this Agreement.
1.2 During the term of any Order Form (the “Order Form Term”) that includes such access and/or such License, OnRamp hereby grants to Partner a non-exclusive, non-transferable (except as permitted inn Section 10.7)
(a) right to access and use remotely and have:
(i) the number of Partner Administrative Users (as defined below) set forth in the Order Form (the “Maximum Number of Partner Administrative Users”) access and use remotely the OnRamp SaaS (defined below) to:
- configure the OnRamp SaaS to reflect playbooks, modules, actions items, questions/responses, next steps, and other processes for each project identified in an Order Form (each, a “Project”);
- enable communications between the OnRamp SaaS and, as applicable: (1) URLs entered into the OnRamp SaaS by Partner (“Webhooks”), and/or (2) Partner-supplied services and/or software identified in such Order Form (the “Partner-Supplied Services and Software”) for each Project (collectively, the “Partner Directed Communications”); and
- provide the Partner Data (defined below) necessary for the onboarding of Partner customers, employees, and/or vendors, as applicable (each, a “Partner Invitee”) for each Project; and
(ii) the number of Invitee Contributors (as defined below) set forth in the Order Form (the “Maximum Number of Invitee Contributors”) access and use remotely the OnRamp SaaS for the purpose of responding to and participating in one or more Projects; in each case through a unique uniform resource locator and log-in rights (the “Partner Access Information”); and
(b) a non-exclusive, non-transferable (except as permitted inn Section 10.7) right and license, to install or have executed a copy of certain OnRamp Software Scripts (defined below) (in object code only) on the Partner website or otherwise (the “Partner Site”) for use by Partner Administrative Users and Invitee Contributors (collectively, the “Users”) with the OnRamp SaaS,
(the licenses in Sections 1.2(b), 1.3, and 1.4, collectively, the “Licenses”) in each case solely for Partner’s internal purposes only and for no other purpose.
1.3 During the Order Form Term of any Order Form that includes such License, in the event an Interface (defined below) is set forth in such Order Form and not otherwise identified in such Order Form as being an Interface provided by OnRamp (each Interface provided by OnRamp, to be referred to as, an “OnRamp Interface”), OnRamp hereby grants to Partner a non-exclusive, non-transferable (except as permitted in Section 10.7) right and license to use the OnRamp application programming interfaces (the “OnRamp APIs”) to develop or have developed software to enable the OnRamp SaaS to communicate with a Partner-Supplied Service or Software (each, a “Developed Interface”). Partner agrees to use the OnRamp APIs and the Developed Interface(s) only in connection with its access and use of the OnRamp SaaS under this Agreement and not resell, sublicense, or distribute the OnRamp APIs or the Developed Interface(s) to any third party for any reason (other than the use of the OnRamp APIs for the development of the Developed Interface by a third party on behalf of Partner) without OnRamp’s prior written consent, in its sole discretion.
1.4 OnRamp hereby grants to Partner, during each Order Form Term, a limited, non-exclusive, non-transferable, and non-sublicensable license to reproduce (without modification) and use a reasonable number of copies of any documentation describing the operation of the Services and the OnRamp Software provided to Partner by OnRamp under this Agreement, if any (“Documentation”). Partner agrees to use the Services and the OnRamp Software in accordance with the most-current version of any Documentation provided to Partner by OnRamp under this Agreement.
1.5 Partner shall not re-grant or distribute to any third party the rights it receives under Sections 1.2, 1.3, or 1.4 other than as specifically stated in Sections 1.2, 1.3 or 1.4, respectively.
1.6 During an applicable Order Form Term: (a) if a User becomes unavailable due to their departure, illness, change in job function, or otherwise, Partner may remove such User and replace them with a new User, provided that not more than the Maximum Number of Partner Administrative Users and the Maximum Number of Contributors authorized in the Order Form, respectively, shall be permitted to be Users under an Order Form until such time as the Order Form is modified to add additional Users pursuant to subsection (b) of this Section 1.6; and (b) if Partner desires to add additional Users to an Order Form, Partner shall provide a written change request to OnRamp, and if such change request is accepted by OnRamp in writing (which may be by electronic mail), such acceptance not to be unreasonably withheld or delayed, the number of Users under such Order Form shall be thereby increased and Partner will incur a charge at the per-User rates set forth on the applicable Order Form or the change order for such additional Users.
1.7 During the term of any Order Form, Partner hereby grants to OnRamp a non-exclusive, non-transferable right and license to use and have used the trademarks, logos, and colors of Partner, in a form approved by and reasonably acceptable to Partner (collectively, the “Licensed Indicia”), for the purpose of enabling OnRamp to co-brand the OnRamp SaaS. OnRamp acknowledges that it has not and will not acquire an interest of any kind in the Licensed Indicia or goodwill associated therewith by virtue of this Agreement or use hereunder.
1.8 In the event that Partner requests services or licenses in addition to the Services or Licenses set forth in an existing Order Form and OnRamp agrees to perform such services or provide such licenses, a separate Order Form or change order will be developed and presented to Partner by OnRamp for approval. Any such additional Order Forms or change orders shall only be effective and considered part of the Services and Licenses, as applicable, upon the written agreement of both parties. Upon such agreement, any such additional Order Forms or change orders will be incorporated herein as additional exhibits to this Agreement and together with the original Order Form shall be referred to as the “Order Form.”
2. Partner Obligations.
2.1 Partner agrees to and to cause the Partner Invitees to:
(a) take such actions and make available such materials and other resources as required for the performance of the Services and the provisions of the Licenses by OnRamp as are set forth in the Order Form(s), and
(b) provide, as applicable, such equipment, software, and ancillary services necessary for, as applicable: (i) all Users to connect to, access and otherwise use the OnRamp SaaS (e.g. personal computer or device, browser, and Internet services), and (ii) Partner to execute the OnRamp Software Scripts (such equipment, software and services in subsections 2.1(b), together with the System Requirements (defined below) to be referred to collectively as, the “Partner Equipment and Software”), and
(c) provide the Partner Site with the minimum requirements for the installation of the OnRamp Software Scripts, as determined by OnRamp (collectively, the “System Requirements”), and
(d) provide all Partner-Supplied Services and Software (the Partner Equipment and Software and the Partner-Supplied Services and Software to be referred to collectively as, the “Partner-Supplied Software and Hardware”).
2.2 Partner shall also be responsible for maintaining the security of the Partner-Supplied Software and Hardware and the Partner Access Information, including but not limited to administrative and user passwords, and for all uses of the Partner Access Information by parties other than by OnRamp and persons over whom OnRamp has control.
2.3 Any failure by OnRamp to perform or any delay in the performance by OnRamp of its obligations under this Agreement caused by a failure of Partner to perform as required in this Agreement or an applicable Order Form shall not constitute a breach of this Agreement by OnRamp.
3. Fees; Payments.
3.1 In consideration for the performance of the Services and provision of the Licenses, Partner agrees to pay OnRamp the fees set forth in each Order Form (collectively, the “Fees”) in accordance with the payment terms set forth herein. In addition, unless otherwise stated in an Order Form, Partner agrees to reimburse OnRamp for all reasonable out-of-pocket costs incurred by OnRamp in connection with the performance of the Services and provision of the Licenses, including expenses for travel, food, and lodging, subject to the prior approval of Partner (collectively, the “Expenses”). OnRamp agrees to provide Partner with copies of Expense records as may be reasonably required by Partner to verify the amount and nature of such Expenses.
3.2 Partner agrees to pay all Fees and Expenses in US Dollars within thirty (30) days of the date of invoice from OnRamp, unless otherwise stated in the Order Form. Payments not made within thirty (30) days of the date of the invoice shall bear interest at the rate of 1.5% per month, or the maximum amount permitted by law, commencing as of the due date of such invoice, until fully paid. In addition, Partner shall be responsible for reimbursing OnRamp for any costs incurred by OnRamp in connection with the successful collection of any unpaid amounts, including attorneys’ fees. Partner shall be responsible for all taxes associated with Services and Licenses other than U.S. taxes based on OnRamp’s net income.
3.3 If Partner disputes an invoice because the invoice reflects an incorrect amount due, Partner must contact OnRamp no later than sixty (60) days after the closing date on the invoice in which the error appeared, in order to be eligible to receive an adjustment or credit.
4. Representations and Warranties.
4.1 Each party represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) it has the rights and licenses to grant the rights and licenses granted by it in this Agreement.
4.2 Each Party represents and warrants that it will comply with all rules, regulations, and laws applicable to its performance under the Agreement Laws, including but not limited to those related to data privacy, including with respect to any collection, use, processing, or transfer of Partner Data (the “Applicable Law”), and with agreements to which it is a party that relate to its performance under the Agreement. Specifically, OnRamp represents and warrants that it will implement and maintain commercially reasonable and industry-standard administrative, physical, and technical safeguards designed to prevent unauthorized access, use, or disclosure of Partner Data within the Services and the OnRamp Software and that the Services and the OnRamp Software will be SSAE 18 SOC 1 Type II Compliant and will comply with the EU Data Protection Directive 95/46/EC, as amended and repealed from time to time including by the EU General Data Protection Regulation 2016/679, the Health Insurance Portability and Accountability Act of 1996, and the California Consumer Privacy Act, as applicable.
4.2 OnRamp represents and warrants that it will perform the Services and provide the Licenses consistent with the standards set forth in the applicable Order Form.
4.3 Partner represents and warrants that it will not and will not allow a Partner Invitee or User: (a) to use the OnRamp Software for any illegal purpose or in violation of any Applicable Law, (b) to violate any right of a third party, including by infringing or misappropriating any third-party Intellectual Property Right (defined below), (c) interfere with security-related features of the OnRamp Software, including by disabling or circumventing features that prevent or limit use or copying of any content, (d) interfere with the operation of the OnRamp Software, including by uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code or interfering with or disrupting any network, equipment, or server connected to or used to provide the OnRamp SaaS, (e) perform any fraudulent activity including impersonating any person or entity, or claiming a false affiliation, (f) provide Partner Data (defined below) that contains protected healthcare information or personally identifiable information (as defined under all Applicable Law) in a form that is not itself encrypted or otherwise secure as required by such Applicable Law, or (g) attempt to do any of the acts described in this Section 4.3 or assist or permit any person in engaging in any of the acts described in this Section 4.3. Partner acknowledges and agrees that OnRamp will not monitor the identification of Partner Invitees or Users (other than to confirm that any applicable maximums are not exceeded); the Partner Data used within the Services and/or the OnRamp Software by Partner, Partner Invitees, or any User; or the configuration of the Services or OnRamp Software for Project use, other than providing any support services included in the Services, all of which will be self-administered by Partner.
5. Intellectual Property.
5.1 Definitions:
(a) “Invitee Contributor” means any individual employee or individual contractor of a Partner Invitee.
(b) “Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights, (iv) patents, designs, algorithms, and other industrial property rights; (v) intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, not otherwise described in Section 5.1(b)(i), (ii), (iii), (iv), or (vi); and (vi) registrations, initial applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
(c) “Partner Administrative User” means any individual employee or individual contractor of Partner..
(d) “OnRamp Software” means: (i) the onboarding and other software (in object and source form) including but not limited to all software made available by or on behalf of OnRamp or its licensors remotely as a service (the “OnRamp SaaS”), and the OnRamp software scripts for execution on a Partner Site (the “OnRamp Software Scripts”); and (ii) (1) all underlying algorithms, user interfaces and network and database designs and schemas, architecture, class libraries, objects, processes, analyses, logic and methodologies; (2) all playbooks, modules, surveys, reports, templates, and methods of presenting data, information, processes and/or Projects available through the access rights or Licenses granted under this Agreement; (3) the unique expressions of the selection, organization and presentation of user visible functions; (4) all training and support materials and Documentation (both printed and electronic); (5) all know-how and all trade secrets used by OnRamp to perform the Services, provided under a License or otherwise provided under this Agreement; (6) all Interfaces and other interfaces; (7) all corrections, fixes, modifications, integrations, enhancements, Updates, Upgrades, and customizations thereto and derivative works thereof developed solely by OnRamp, or by or with the input of another party; and (8) all Intellectual Property Rights underlying subsection 5.1(d)(i) and (ii) throughout the world (whether owned or licensed from a third party).
(e) “Partner Data” means all (i) data provided manually by Partner, a Partner Invitee, a User, or the Partner-Supplied Software and Hardware to the OnRamp Software, and (ii) data accessed by the OnRamp Software from Partner-Supplied Software and Hardware, including in each case, but not limited to data entered, uploaded or transferred within the OnRamp Software or received through a Partner Directed Communication into the OnRamp Software.
(f) “Update” means a release of a component of the OnRamp Software designated as such by OnRamp, intended to correct an error, including but not limited to, patches, and bug fixes.
(g) “Upgrade” means, collectively, a release of a component of the OnRamp Software, designated as such by OnRamp, intended to (i) improve the performance and/or security of the OnRamp Software (a “Maintenance Upgrade”), and (ii) provide additional functionality or features (a “Functional Upgrade”); provided that, in OnRamp’s sole discretion, Functional Upgrades may be provided at an additional charge and under separate terms and conditions agreed to in writing by the parties, provided that OnRamp agrees and acknowledges that Partner will not be subject to any degradation in OnRamp Software functionality should Partner elect not to implement any Functional Upgrade that is subject to an additional charge.
5.2 As between the parties, Partner retains all right, title, and interest in and to the Licensed Indicia and the Partner Data which shall be included in the definition of Partner Confidential Information.
5.3 As between the parties, OnRamp retains all right, title, and interest in and to the Services and the OnRamp Software which shall be included in the definition of OnRamp Confidential Information. Except for the rights expressly granted in this Agreement, this Agreement does not transfer to Partner all or any portion of the Services or the OnRamp Software. No work-for-hire or joint development is contemplated by this Agreement. In the event that OnRamp is engaged to develop any software or other copyrightable material for Partner, the parties agree to execute a separate development agreement.
5.4 The rights granted in this Agreement are restricted as follows: Partner shall not, and shall not permit others to, (i) reverse engineer, disassemble, decompile, or attempt to reconstruct, identify or discover or otherwise derive the source code, underlying ideas, underlying user interface techniques or algorithms of, or modify, port, translate, localize, or create derivative works based on the OnRamp Software by any means whatsoever or disclose any of the foregoing; (ii) copy, sell, lease, license, sublicense, market, or distribute any Service or OnRamp Software in any time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party, except as specifically permitted herein; (iii) take any action that would cause any Service or OnRamp Software to be placed in the public domain or to be disclosed to a third party without OnRamp’s consent; or (iv) remove, modify, or alter any OnRamp or third-party copyright notice from any part of the Services or OnRamp Software, including but not limited to any such notices contained in the physical or electronic media or documentation or in any web presence or web-enabled notices, code, or other embodiments originally contained in or dynamically or otherwise created by the Services or the OnRamp Software.
5.5 Partner may not remove or export from the United States or permit the export or re-export of the Services or any OnRamp Software by a Partner Invitee or other third party in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. The software included as part of any OnRamp Software and the related Services are commercial items, as defined in FAR 2.101. Such software is “commercial computer software,” and its related documentation is “commercial computer software documentation,” as described in FAR 12.212. Consistent with FAR 12.212, Partner’s and Partner Invitees’ access to and use of such software will be governed by this Agreement.
6. Confidential Information.
6.1 Each of OnRamp and Partner acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, technology, products, and customers and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not be limited to, the terms, conditions and existence of this Agreement.
6.2 Each of OnRamp and Partner agrees that it will not: (a) use in any way, for its own account or the account of any third party any of the other party’s Confidential Information, or (b) except as expressly permitted by this Agreement and to its attorneys, accountants, and other advisors (its “Representatives”), disclose to any third party any of the other party’s Confidential Information, provided that each party shall make all Representatives (and in the case of Partner, all Users) aware of the provisions of this Agreement as applicable to such Representatives (and Users’) use of the Confidential Information of the other party. A breach of this Agreement by a party’s Representatives, and in the case of Partner, a User, shall constitute a breach of this Agreement by such party.
6.3 Each party shall take all reasonable precautions to protect the confidentiality of the other party’s Confidential Information, which precautions, in any event, will be at least as stringent as it takes to protect its own Confidential Information.
6.4 Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt of it from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party.
6.5 The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that, unless restricted by order of a governmental agency or otherwise restricted by law, the receiving party provides reasonable notice to the other party of the required disclosure so as to permit the other party to respond to such request for disclosure.
6.6 Each party agrees that any violation or threatened violation of Section 1, Section 5, or this Section 6 by a party may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all other available remedies at law and otherwise (without proof of actual damages or posting a bond).
6.7 Notwithstanding anything in the Agreement to the contrary, Partner agrees that (a) Partner Directed Communications containing Partner Confidential Information and the communication of Partner Confidential Information by the OnRamp Software to Partner-Supplied Software or Hardware shall be permitted under this Section 6, (b) Partner, and not OnRamp shall be responsible for the security and compliance of the Partner Directed Communications through a Developed Interface and using Partner-Supplied Software or Hardware with Sections 4.3 and 6, and (c) Partner shall look to the terms and conditions applicable to the Partner-Supplied Software and Hardware, and not the Agreement, for a description of the use of such Partner Confidential Information by such Partner-Supplied Software and Hardware.
7. Indemnification; Limitations.
7.1 Each party (the “Indemnifying Party”) agrees to defend, indemnify, and hold harmless the other party and its directors, officers, employees, and agents (collectively, the “Indemnified Party”) from and against any and all costs, liabilities, fees, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) to the extent resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against the Indemnified Party alleging: (i) any breach by the Indemnifying Party of any of its representations, warranties, or covenants contained in this Agreement, and (ii) the infringement or misappropriation of any third party Intellectual Property Right arising from the use by the Indemnified Party of the intellectual property of the Indemnifying Party (which in the case of OnRamp, will include the Services and the OnRamp Software, and in the case of Partner will include the Partner-Supplied Software and Hardware, the Licensed Indicia and the Partner Data).
7.2 An Indemnifying Party’s indemnification obligations hereunder shall be subject to: (i) receiving prompt written notice of the existence of any Action or Loss from the Indemnified Party; (ii) being able to, at its option, control the defense of such Action; (iii) permitting the Indemnified Party to participate in the defense of any Action; and (iv) receiving the full cooperation of the Indemnified Party in the defense thereof. Notwithstanding the foregoing, an Indemnifying Party will not be responsible for any settlement it does not approve in writing.
7.3 The obligations in subsection 7.1(ii) will not apply with respect to any intellectual property (i) not supplied by the Indemnifying Party; (ii) that is modified after delivery by the Indemnified Party; (iii) is combined with other products, processes, or materials where the alleged infringement relates to such combination; (iv) where the Indemnified Party continues allegedly infringing activity after being notified thereof and provided with a modification by the Indemnifying Party that would have avoided the alleged infringement; or (v) in the case of Partner, where the use of the Services or the OnRamp Software is not strictly in accordance with this Agreement.
7.4 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 4, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND EXCEPT AS OTHERWISE STATED HEREIN, EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY MAKES NO WARRANTY THAT THE SERVICES AND LICENSES WILL BE ACCESSIBLE WITHOUT INTERRUPTION.
7.5 TO THE FULLEST EXTENT PERMITTED UNDER LAW, IN NO EVENT WILL EITHER PARTY HAVE LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS (COLLECTIVELY, THE “HIGHER LIMIT CLAIMS”), IN NO EVENT WILL THE TOTAL (I.E., AGGREGATE FOR ALL CLAIMS, NOT PER CLAIM) LIABILITY OF A PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY PARTNER TO ONRAMP DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. IN NO EVENT WILL THE TOTAL (I.E., AGGREGATE FOR ALL CLAIMS, NOT PER CLAIM) LIABILITY OF A PARTY FOR THE HIGHER LIMIT CLAIMS EXCEED THE LESSER OF FIVE TIMES THE TOTAL AMOUNTS PAID BY PARTNER TO ONRAMP DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM AND $1 MILLION DOLLARS. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
7.6 The parties acknowledge that OnRamp has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
8. Term; Termination.
8.1 This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with this Section 8 (the “Term”)
8.2 Either OnRamp or Partner may terminate this Agreement and all Order Forms hereunder or any single Order Form: (i) if there are no Order Forms in effect; (ii) if the other party breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within ten (10) days after receipt of written notice from OnRamp; (iii) immediately, if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iv) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
8.3 Upon the effective date of termination of this Agreement or any Order Form, all Licenses and all rights to access and use the Services and the OnRamp SaaS shall cease and any and all Fees payable by Partner under this Agreement for Services performed, the OnRamp SaaS and Licenses provided through the date of termination will immediately become due. Within thirty (30) days of such termination, each party will destroy all Confidential Information and of the other party in its (and in the case of Partner, the Partner Invitees’) possession and will not make or retain any copies of such Confidential Information. Notwithstanding the foregoing, upon any termination, OnRamp will make all Partner Data and available to Partner for electronic retrieval for a period of thirty (30) days, but thereafter OnRamp may, but is not obligated to, delete stored Partner Data.
9. Insurance.
OnRamp and Partner shall each keep in full force and effect during the term of this Agreement: (i) comprehensive general liability insurance in an amount not less than $1,000,000 million per occurrence for bodily injury and property damage, and (ii) workers' compensation insurance in an amount not less than that required by applicable law.
10. Miscellaneous Provisions.
10.1 Except for the obligation to pay all Fees, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, pandemic or epidemic, riot, sabotage, labor shortage or dispute, governmental act or failure of telecommunications, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
10.2 This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts without reference to its choice of law as applied to contracts between Massachusetts residents. The state and Federal courts in the Commonwealth of Massachusetts shall have exclusive jurisdiction over matters arising under or associated with this Agreement. Each of the parties consents to the exclusive jurisdiction and venue of such courts and irrevocably waives any objections thereto.
10.3 OnRamp, and Partner agree that there shall be no third-party beneficiaries to this Agreement, including but not limited to the insurance providers for either party.
10.4 In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
10.5 Either Partner or OnRamp may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or equity. Partner may not otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of OnRamp, and any attempted assignment or delegation without such consent will be void. OnRamp may delegate the performance of certain of its obligations to third parties, provided OnRamp controls the delivery of such obligations to Partner and remains responsible to Partner for the performance of such obligations. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
10.6 Unless otherwise specifically stated herein, any notice or communication required or permitted to be given hereunder may be delivered by (i) electronic mail; and (ii) also, by hand, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed above for such party on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, or sent, whichever is earlier.
10.7 Each of OnRamp and Partner is an independent contractor and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between OnRamp and Partner. Neither OnRamp nor Partner will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
10.8 This Agreement includes all exhibits and attachments incorporated herein by reference, and constitutes the complete and exclusive agreement between Partner and OnRamp with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Any additional or different terms in any OnRamp click-through terms and conditions or available through any OnRamp website shall be deemed objected to by Partner without need of further notice of objection and shall be of no effect or in any way binding upon Partner. Any additional or different terms in any purchase order or invoice payment by Partner shall be deemed objected to by OnRamp without need of further notice of objection, and shall be of no effect or in any way binding upon OnRamp. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile, scan) is considered an original. This Agreement may be changed only by a written document signed by authorized representatives of OnRamp and Partner in accordance with this Section 10.08.
10.9 Sections 5, 6, 7, 8.3, and 10 of this Agreement shall survive the termination of this Agreement for any reason.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as of the Effective Date.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows: