MASTER ACCESS AGREEMENT
THIS MASTER ACCESS AGREEMENT (“Agreement”) is entered into as of the date of the Client clicking “Place Order” (the “Agreement Effective Date”), and is between Client and Black Knight Technologies, LLC, a Delaware limited liability company (“Black Knight”) with offices at 601 Riverside Avenue, Jacksonville, FL 32204. Individually, the Parties to this Agreement will be referred to as “Party” and collectively as the “Parties.” The signer, on behalf of Client, acknowledges and agrees by registering, clicking the “Place Order” button and/or using Technology Solutions: (i) that he or she has authority to bind Client to the terms of this Agreement; (ii) to be bound by all of the terms in this Agreement, and (ii) that this Agreement replaces and supersedes any previous agreement between Client and Black Knight governing use of the Technology Solutions.
1. PROVISION OF TECHNOLOGY SOLUTIONS AND PROFESSIONAL SERVICES
1.1 Technology Solutions. This Agreement sets forth the general terms and conditions under which Black Knight and/or its Affiliates and Client and/or Client’s Affiliates will enter into Schedules under which Black Knight and/or its Affiliates will provide Technology Solutions to Client and/or Client’s Affiliates (each, a “Schedule”). Black Knight may make available to Client certain Technology Solutions as described in the Schedules and as set forth in greater detail in the Documentation. To the extent Client uses any of the Technology Solutions or other services, the terms and conditions of this Master Access Agreement shall apply to such use. The terms and conditions of the Schedules may be updated from time to time. Such updates will be provided to Client in writing, and the most current version of such Schedule shall apply to Client’s use of the Technology Solutions and the associated terms and conditions for that use, inclusive of applicable fees.
1.2 SOWs for Professional Services. This Agreement sets forth the general terms and conditions under which Black Knight and/or its Affiliates and Client and/or Client’s Affiliates will enter into Statements of Work under which Black Knight and/or its Affiliates will provide Professional Services to Client and/or Client’s Affiliates (each, a “SOW”). The Professional Services to be rendered by Black Knight and/or its Affiliates to Client and/or its Affiliates are limited to those Professional Services that are described in each SOW. Each SOW will constitute a separate contract incorporating the terms and conditions of this Agreement.
1.3 Affiliates. Each Schedule and SOW will specify that Black Knight or the specifically identified Black Knight Affiliate will provide the Technology Solutions and/or Professional Services and that Client or the specifically identified Client Affiliate will be responsible for paying any fees specified in the Schedule or SOW. If a Black Knight Affiliate executes a Schedule or SOW, then for the purposes of that Schedule or SOW the term “Black Knight” as used in this Agreement and the Schedule or SOW will be interpreted as a reference to that Black Knight Affiliate, rather than to Black Knight itself. Likewise, if a Client Affiliate executes a Schedule or SOW, then for the purposes of that Schedule or SOW the term “Client” as used in this Agreement and the Schedule or SOW will be interpreted as a reference to that Client Affiliate, rather than to Client itself. Any additions or amendments to the terms of this Agreement set forth in a Schedule or SOW will not constitute an addition or amendment to any provision of this Agreement with respect to any other Schedule or SOW. The entities executing the Schedule or SOW shall be referred to individually as a “Party” and collectively as the “Parties.”
1.4 Necessary Equipment. Client shall be solely responsible, at its own expense, for purchasing, installing, and maintaining all equipment (including computers and scanners), hardware and software, and providing internet connectivity necessary for Client to connect to, access and use Technology Solutions.
2. INVOICING AND PAYMENT
2.1 Invoicing. Black Knight will invoice Client, and Client will pay, for Technology Solutions and Professional Services according to the payment schedule contained in the applicable Schedule or SOW or, if no Schedule is provided, monthly in accordance with Section 2.2 (“Payment”).
2.2 Payment. Client will pay all fees in U.S. Dollars. All amounts are due within thirty (30) days after Client’s receipt of the applicable invoice. If Client does not pay an invoice when due, Client will pay an interest charge equal to the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by law. Interest will begin to accrue on the day after the payment due date and will accumulate daily on the outstanding balance until paid in full.
2.3 Taxes. Client is responsible for the payment of goods and services taxes, value added taxes, sales taxes, use taxes or similar taxes (collectively, “Sales Taxes”) that may be assessed by taxing authorities on the provision of the Technology Solutions or Professional Services, or otherwise arising under this Agreement. Client agrees to pay directly to Black Knight the Sales Taxes arising out of this Agreement, subject to the requirement that Black Knight provides a Sales Tax receipt or invoice in a timely manner. Black Knight will make an initial determination of the applicability of Sales Taxes with respect to the Technology Solutions or Professional Services provided under this Agreement and will begin assessing those Sales Taxes upon commencement of the applicable services. If such determination is subsequently challenged or altered by a taxing authority or change in legislation, Client agrees that the payment of any additional tax is its responsibility. If, after Client has duly instructed Black Knight as to the proper Sales Tax treatment in connection with the Technology Solutions and Professional Services provided pursuant to Schedules and SOWs under this Agreement, Black Knight fails to collect and remit properly the amount of taxes required to be collected for any taxing authority, Black Knight shall be responsible for and shall pay any interest, assessments, fines and penalties which may be assessed against Client or Black Knight for Black Knight’s failure to collect and timely remit such Sales Taxes. Client will notify Black Knight in writing of any changes in Client’s business operations that alters Client’s prior instructions regarding the appropriate treatment of Sales Taxes on Client’s invoices. Black Knight shall be responsible for remitting any Sales Taxes collected, the payment of taxes on Black Knight’s net income, ownership of property, and all employer reporting and payment obligations with respect to Black Knight’s personnel.
2.4 Adjustments of Fees. Black Knight may adjust the fees by written notice to Client. Written notice can include electronic posting on the relevant Black Knight website.
3.1 Confidential Information. “Confidential Information” of a Party (the “Furnishing Party”) means information and/or Intellectual Property belonging to or in the possession of the Furnishing Party or an Affiliate of the Furnishing Party that is furnished or disclosed to, or obtained by, the other Party (the “Receiving Party”) or the Receiving Party’s Affiliates under this Agreement, a Schedule, or a SOW (including information exchanged in contemplation of entering into such agreements), or in connection with any performance or activity under this Agreement, a Schedule, or a SOW, whether in a tangible or intangible form, that is of a nature that a reasonable person would understand to be confidential or a trade secret or that is identified as confidential or a trade secret at the time it is furnished or disclosed to or obtained by the Receiving Party or identified as such in a writing provided to the Receiving Party within thirty (30) business days after such furnishing or disclosure. All Black Knight Material and all Derivations of Black Knight Material and any information (including residual knowledge or information resulting from access or use to the same) in any format related thereto are and shall be conclusively deemed to be Black Knight Confidential Information regardless of whether or how they are marked. All data and information originating with Client or any customer of Client and entered by Client in Black Knight Technology Solutions or provided to Black Knight for storage or processing is Client Confidential Information regardless of whether or how it is marked.
3.2 Exclusions. Confidential Information does not include any information that, as evidenced by written documentation: (i) is already known to the Receiving Party without restrictions at the time of its disclosure by the Furnishing Party; (ii) after its disclosure by the Furnishing Party, is made known to the Receiving Party without restrictions by a third party having the right to do so; (iii) is or becomes publicly known without violation of this Agreement; or (iv) is independently developed by the Receiving Party without reference to the Furnishing Party’s Confidential Information. Notwithstanding the foregoing, Section 3.2(iii) shall not operate to exclude confidential treatment of any portion of the Technology Solutions that is derived from publicly available sources such as data sets containing public record data.
3.3 Standard of Care. Confidential Information will remain the property of the Furnishing Party, and the Receiving Party will not be deemed by virtue of this Agreement or any access to the Furnishing Party’s Confidential Information to have acquired any right, title, or interest in or to the Furnishing Party’s Confidential Information. The Receiving Party agrees: (i) to hold the Furnishing Party’s Confidential Information in strict confidence affording the Furnishing Party’s Confidential Information at least the same level of protection against unauthorized disclosure or use as the Receiving Party normally uses to protect its own information of a similar character, but in no event less than reasonable care; (ii) to limit disclosure of the Furnishing Party’s Confidential Information to the Receiving Party’s employees who are using, receiving, supporting, or providing the Technology Solutions or Professional Services hereunder, or otherwise having a need to know the information for a purpose intended under this Agreement; (iii) not to disclose any such Confidential Information to any third party; (iv) to use the Furnishing Party’s Confidential Information solely and exclusively in accordance with the terms of this Agreement, a Schedule, or a SOW in order to carry out its obligations and exercise its rights under such agreements; and (v) to notify the Furnishing Party promptly of any unauthorized use or disclosure of the Furnishing Party’s Confidential Information and cooperate with and assist the Furnishing Party in every reasonable way to stop or minimize such unauthorized use or disclosure.
3.4 Compelled Disclosure. Unless otherwise prohibited by law or order, if the Receiving Party receives a subpoena or other valid administrative or judicial notice requesting the disclosure of the Furnishing Party’s Confidential Information, the Receiving Party will promptly notify the Furnishing Party. If requested, the Receiving Party will provide reasonable cooperation to the Furnishing Party in resisting or limiting the disclosure at the Furnishing Party’s expense. Subject to its obligations stated in the preceding sentence, the Receiving Party may comply with any binding subpoena or other process to the extent required by law, but will in doing so make every reasonable effort to secure confidential treatment of any materials disclosed.
3.5 Return or Destruction. Upon termination or expiration of this Agreement and any applicable dependent document(s) issued under this Agreement, the Receiving Party will return or destroy all Confidential Information of the Furnishing Party that the Receiving Party does not possess under a valid and continuing right to access and use; provided that Black Knight may retain: (i) one (1) copy of all of its work products (including working papers) produced under this Agreement (including any Schedule or SOW) for archival purposes; and (ii) backup copies of certain Client Confidential Information stored in a secure facility together with other data from Black Knight’s leveraged processing environments, if applicable, in accordance with Black Knight’s standard data retention policies and procedures.
3.6 Relief. Each Party agrees that money damages may not be an adequate remedy for a breach, attempted breach, or threatened breach of confidentiality obligations set forth in this Agreement. Accordingly, the Furnishing Party will be entitled to seek appropriate injunctive relief and other measures restraining any breach, attempted breach, or threatened breach of such obligations.
3.7 Confidentiality of this Agreement. The Parties agree that the existence, terms, and conditions of this Agreement and the related negotiations between Client and Black Knight with respect to this Agreement and any Schedule or SOW will be treated as confidential pursuant to this Section.
4.1 Black Knight Material. All ownership, rights, title, and interest in and to any Black Knight Material, together with any Derivations of any Black Knight Material, whenever, wherever, or by whomever developed, created, discovered, or acquired are, shall be, and will remain, as between Client and Client personnel and Black Knight, owned solely and exclusively by Black Knight. Statistical information derived from Client’s or other third parties’ use of the Technology Solutions is Black Knight Material. Nothing in this Agreement or any Schedule or SOW will be deemed to assign, convey, transfer, or grant any right, title, interest, ownership, license, or claim of any kind in, to, or under any Black Knight Material or Derivations of any Black Knight Material, either in whole or in part, to Client, any Client personnel, or any third party. Any Derivation of Black Knight Material, regardless of medium, created, discovered, or developed by Black Knight and/or Client or any Client personnel (including in violation of Section 4.2 (“Limited Rights to Access and Use Black Knight Material”) or Section 4.3 (“Limitations”)), or any third party, or any other Intellectual Property using, utilizing, based on, with reference to, or in connection with any Black Knight Material, including, without limitation, any contribution by Client or Client personnel to any Derivation of any Black Knight Material, and all Intellectual Property Rights in and to them, will not be considered “works for hire,” but rather will be deemed to be Black Knight Material and owned solely and exclusively by Black Knight. To the extent that any such Derivation or other Intellectual Property including or constituting any Black Knight Material may nonetheless be considered a work for hire for Client or any Client personnel under applicable law, or to the extent that Client or any Client personnel otherwise has or acquires any ownership, right, title, interest, license, or claim in, to, or under any Black Knight Material under applicable law, Client agrees that Black Knight shall solely own such Derivation or Intellectual Property, and Client hereby assigns, transfers, and conveys, and shall cause all Client personnel to assign, transfer, and convey, all such ownership, rights, title, interest, license, and claim in, to, or under any Black Knight Material to Black Knight, automatically and effective immediately upon the creation, discovery, or development, without the necessity of any further consideration to Client or Client’s personnel.
4.2 Limited Rights to Access and Use Black Knight Material. To the extent that Black Knight grants Client access under this Agreement, a Schedule, or a SOW to any Black Knight Material, Black Knight hereby grants Client a limited, nontransferable, non-assignable, nonexclusive right, without any right to directly or indirectly sublicense or grant any sublicense right, to access and use such Black Knight Material, solely for the term as stated in the applicable Schedule or SOW and, in no event longer than the Term, solely for: (a) Client’s internal use to process data owned by Client or to which Client owns servicing rights, as applicable, and not in a Service Bureau Processing environment; and (b) the purpose intended under the applicable Schedule or SOW. Black Knight does not grant or assign to Client any legal or equitable title or other right in any Black Knight Material or any Derivations of any of the Black Knight Material. All Black Knight Material and Derivations of any Black Knight Material shall remain Black Knight’s sole and exclusive property and Black Knight Material under Section 4.1 (“Black Knight Material”), and no use shall be made of any concepts, methods, ideas, processes, or other Intellectual Property or Intellectual Property Rights used or included in or covered by, or that may be derived from, any Black Knight Material unless as expressly allowed in a provision in this Agreement or in the applicable Schedule or SOW. Client may not provide or permit access to any Black Knight Material or Derivation of any Black Knight Material, or any part or component thereof, to any Competitor or any other third party without Black Knight’s express prior written consent, nor shall Client use Black Knight Material for the purpose of developing products or services competitive to Black Knight. Additionally, Client may not perform any scans (security or otherwise) on any Black Knight Technology Solution without Black Knight’s prior written consent.
4.3 Limitations. Client may not, directly or indirectly, (a) modify, adapt, translate, transliterate, or create any Derivation of or from the Black Knight Material; or (b) reverse engineer, disassemble, analyze, attempt to derive source code of, or examine for purposes of reverse engineering, any Black Knight Material; or (c) challenge Black Knight’s sole and exclusive ownership of, or Black Knight’s or Black Knight’s Affiliates’ rights in or to or under, any Black Knight Material, or challenge the validity or enforceability of any Black Knight Material; or (d) access or use Technology Solutions for the purpose of comparing results with another solution, developing another solution, or benchmarking another solution; or (e) induce, assist with, or support any third party’s engaging in any activity covered by any of the foregoing clauses. Client will provide prompt written notice to Black Knight if Client knows of, or suspects, any activity covered by any of the foregoing clauses by any Client personnel or any third party. Nothing in this Section shall, implicitly or expressly assign, transfer, convey, or grant any right or license in, to, or under any Black Knight Material.
4.4 Termination of Access. Upon termination or expiration of this Agreement or the applicable Schedule or SOW, Client’s access to the respective Black Knight Material will end immediately and Client agrees to return the Black Knight Material and all Derivations of Black Knight Material in its possession or in the possession of third parties, to destroy all copies made by Client, its employees and/or Client’s third parties, and to certify to Black Knight in writing that it has returned or destroyed the Black Knight Material. Client shall promptly notify Black Knight of, and deliver to Black Knight all of, any Derivation of any Black Knight Material created, discovered, developed, or acquired by or for Client or any of its Affiliates or other Client personnel.
4.5 Intellectual Property Rights Notices. Client and Black Knight agree not to remove, change, obscure, or obliterate any copyright, trademark, patent, or other Intellectual Property Rights notices, footnotes, ledgers, or information from any Black Knight Material or Derivations thereof, or any Client Material, as applicable
4.6 Open Source Acknowledgment. The Parties acknowledge and agree that the Technology Solutions may contain open source software, and that the respective licenses for such open source software may be provided in the Documentation.
5. TERM AND TERMINATION
5.1 Term. This Agreement is effective from the Effective Date and will continue in full force and effect so long as any Schedule(s) or SOW(s) remain in effect or until terminated in accordance with this Section 5 (collectively, the “Term”).
5.2 Termination For Cause. Black Knight may, in Black Knight’s sole discretion, suspend the rights to access or use the Technology Solutions or terminate this Agreement immediately upon the occurrence of any of the following events:
(a) If Client fails to remit any payment in accordance with Section 2.2 (“Payment”);
(b) If Client commits fraud, negligence, or willful misconduct;
(c) If Client becomes insolvent or files for bankruptcy (or if an involuntary case or other proceeding is brought against Client seeking liquidation, reorganization, or other such relief), or Black Knight reasonably believes that Client will soon become insolvent or file for bankruptcy;
(d) If there is a data security or integrity incident related to Client, or Client’s access to or use of Technology Solutions; or
(e) If Client fails to comply with any material term or provision of this Agreement.
5.3 Notice of Status. In the event Client breaches this Agreement, or Black Knight terminates this Agreement or suspends Client’s rights to access or use the Technology Solutions (or intends to terminate this Agreement or suspend Client’s rights to access or use the Technology Solutions), Client consents to Black Knight’s notification of the same (including information related to the breach, termination, and/or suspension) to any third party when Black Knight has a business reason to notify that third party. Client will hold Black Knight harmless from any damages, claims, and/or liabilities that result from Black Knight’s notice to a third party.
5.4 Survival. Any provision of this Agreement or any Schedule or SOW that imposes or contemplates continuing obligations on a Party, including the provisions of Section 2 (“Invoicing and Payment”), Section 3 (“Confidentiality”), Section 4 (“Ownership”), Section 5.3 (“Notice of Status”), Section 5.4 (“Survival”), Section 6.2 (“Client’s Representations and Warranties”), Section 7.2 (“Client’s Indemnity”), Section 7.3 (“Indemnification Procedures” to the extent applicable to Client), Section 8 (“Limitation of Liability”), Section 9 (“Law and Conflict Resolution”), and Section 11 (“General”) will survive the expiration or termination of this Agreement, or the SOW or Schedule in which it is contained, as applicable. The termination of any particular SOW or Schedule will not affect the Parties’ respective rights, duties and obligations under any other SOWs or Schedules then in effect.
6. REPRESENTATIONS AND WARRANTIES
6.1 Black Knight’s Representations and Warranties. Black Knight represents and warrants to Client that it is the owner of Technology Solutions and/or has full right, power, and authority to enter into and perform under this Agreement and to grant access to Client to Technology Solutions. Black Knight further represents and warrants that Black Knight will comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations in regard to the operation of its business. Black Knight further represents and warrants to Client that the Technology Solutions conform, in all material respects, to the specifications set forth in the Documentation.
6.2 Client’s Representations and Warranties. Client represents to Black Knight that it has full right, power, and authority to enter into and perform under this Agreement. Client further represents and warrants that all data it submits through the Technology Solutions is true and correct. Client further represents and warrants that Client will comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations in regard to the operation of its business. Client further represents and warrants that it will not share user account information.
6.3 Limited Warranty. Client expressly acknowledges that there may be times when access may be interrupted due to events outside of the reasonable control of Black Knight, or during Black Knight maintenance windows. Black Knight undertakes only that, with respect to any problem or interruption, it will use its best efforts to supply an avoidance procedure for identification and correction of errors and omissions relating to interruption, storage and backup of data. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, THE TECHNOLOGY SOLUTIONS ARE PROVIDED ON AN “AS IS” BASIS. BLACK KNIGHT DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.1 Black Knight Indemnity. Black Knight will indemnify, defend, and hold harmless Client and its Affiliates (collectively, the “Client Indemnitees”), from and against all third party claims for damages, final judgments, settlements, and court costs (“Indemnified Damages”) brought against any of the Client Indemnitees and its and their respective Representatives to the extent based upon, subject to Section 7.4 (“Additional Indemnification Procedures for Intellectual Property Infringement”), actual or alleged infringement by the Technology Solutions of any third party’s Intellectual Property Rights, except that Black Knight is not responsible for any alleged or actual infringement to the extent caused by: (i) modifications to or Derivations of the Technology Solutions by anyone other than Black Knight; (ii) the combination, operation or use of the Technology Solutions with other items Black Knight did not supply; or (iii) adherence to Client’s specifications in conjunction with an implementation, modification or enhancement to any Technology Solutions.
Notwithstanding the foregoing, the Parties acknowledge that any third party service provider whose use is mandated or required by Client is not a “Representative” or “subcontractor” of Black Knight for purposes of this Agreement, unless specifically agreed to in writing by the Parties.
7.2 Client’s Indemnity. Client will indemnify, defend, and hold harmless Black Knight and its Affiliates, and its and their Representatives (collectively, the “Black Knight Indemnitees”), from and against all third party claims for Indemnified Damages brought against any of the Black Knight Indemnitees to the extent based upon:
(a) Client’s (including its Affiliates, and the Representatives, subcontractors, and third parties of it and its Affiliates) breach of Sections 3 (“Confidentiality”) or 4 (“Ownership”);
(b) Black Knight’s performance under this Agreement in conformity with: (i) any written policies, processes, interpretations or other written instructions provided by Client for purposes of performance of the Technology Solutions or Professional Services; and (ii) this Agreement, including any Schedules or SOWs;
(c) Actual or alleged infringement by the Client Confidential Information of any Intellectual Property Rights, except that Client is not responsible for any alleged or actual infringement to the extent caused by: (i) modifications made to the Client Material by Black Knight other than as a result of any services or performance of Black Knight under this Agreement; or (ii) the combination, operation or use of the Client Material with items other than the Technology Solutions;
(d) Any claim or action arising from or out of Client’s breach of its representations and warranties set forth in Section 6.2 (“Client’s Representations and Warranties”); or
(e) Client’s use of the Technology Solutions and any data or content Client submits, posts, enters, or transmits through the Technology Solutions.
7.3 Indemnification Procedures. The obligation of Black Knight or Client (as applicable, the “Indemnifying Party”) to indemnify the Client Indemnitees or the Black Knight Indemnities (as applicable, the “Indemnified Party”) as provided in this Section 7 is conditioned upon the Indemnifying Party having the sole right to conduct and control the defense of the claim and all negotiations for its settlement or compromise, unless otherwise mutually agreed to in writing between the parties; provided, however, that no settlement or compromise may include any acknowledgement or admission of liability by, or the entry of any judgment against, the Indemnified Party without the Indemnified Party’s consent, which consent may not be unreasonably delayed, conditioned or withheld. The Indemnifying Party agrees to give the Indemnified Party, and the Indemnified Party agrees to give the Indemnifying Party, as applicable, prompt written notice of any written threat, warning or notice of any such claim against the Indemnifying Party or Indemnified Party, as applicable, that could have an adverse impact on the other Party, provided the Indemnifying Party or Indemnified Party, as appropriate, knows of such claim or action. The Indemnified Party agrees to utilize commercially reasonable efforts to mitigate pending claims in circumstances in which the loss cannot be directly mitigated by the Indemnifying Party. The Indemnifying Party will be responsible for all expenses reasonably incurred by an Indemnified Party at the Indemnifying Party’s request.
7.4 Additional Indemnification Procedures for Intellectual Property Infringement. If any third party claim of infringement is defended by Black Knight under Section 7.1, and if Black Knight deems it advisable to do so, Black Knight may at its sole option take one or more of the following actions at no additional cost to Client: (a) procure the right to continue the use of the Technology Solutions without material interruption for Client; (b) replace the Technology Solutions with a non-infringing substitute that meet the same business requirements as the infringing Technology Solutions; or (c) modify the Technology Solutions so as to be non-infringing, provided that the Technology Solutions as modified meet the same business requirements as the infringing Technology Solutions. The remedies set forth in this Section 7.4 represent the sole and exclusive remedy of Client with regard to any infringement or alleged infringement.
8. LIMITATION OF LIABILITY
8.1 LIMITATION OF LIABILITY. BLACK KNIGHT SHALL NOT BE LIABLE FOR GENERAL, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) UNDER ANY THEORY OF RECOVERY, EVEN IF BLACK KNIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BLACK KNIGHT’S AGGREGATE LIABILITY UNDER ANY THEORY OF RECOVERY BE MORE THAN THE LESSER OF THE FEES FOR ACCESS TO THE TECHNOLOGY SOLUTIONS RECEIVED BY BLACK KNIGHT FROM CLIENT DURING THE THREE MONTHS PRECEDING THE ACTION GIVING RISE TO THE CLAIM OR $50,000.
9. LAW AND CONFLICT RESOLUTION
9.1 Governing Law. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Florida, without regard to any provision of Florida law that would require or permit the application of the law of any other jurisdiction.
9.2 Binding Arbitration. Any question or dispute arising out of or relating to this Agreement will be settled by arbitration in accordance with the American Arbitration Association’s Commercial Arbitration Rules and the Supplementary Procedures for Large, Complex Disputes, and judgment on the award may be entered in any court having jurisdiction. Disputes for Client’s failure to pay fees to Black Knight shall be settled by arbitration in accordance with the expedited procedures, and the Parties consent to the use of the expedited procedures even in the event that the claim exceeds $75,000.00. The seat of the arbitration will be Jacksonville, Florida, there shall be only one arbitrator, and the timeline between initiation of arbitration and the hearing shall not exceed nine months without the consent of all Parties. The arbitrator will have no authority to award any damages that are excluded by the terms and conditions of this Agreement. Except as required by law, neither Party, nor the Arbitrator, may disclose the results of the Arbitration, hearing testimony or evidence or discovery taken without prior written consent of all Parties. All discovery materials shall be used for the purpose of the Arbitration hearing and no other purpose. Either Party will have the right to apply at any time to a judicial authority for appropriate injunctive or other interim or provisional relief, and will not by doing so be deemed to have breached its agreement to arbitrate or to have affected the powers reserved to the arbitrators.
9.3 Jurisdiction. Any Party bringing a legal action or proceeding against any other Party that is not subject to arbitration pursuant to Section 9.2 (“Binding Arbitration”) and arising out of or relating to this Agreement or any Schedule or SOW will bring the legal action or proceeding in the United States District Court for the Middle District of Florida or in any court of the State of Florida sitting in Duval County, Florida, and the Parties consent to personal jurisdiction and venue in such courts. Each Party waives, to the fullest extent permitted by law (a) any objection which it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to this Agreement or any Schedule or SOW brought in any court of the State of Florida sitting in Duval County, Florida, or in the United States District Court for the Middle District of Florida, and (b) any claim that any action or proceeding in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
9.4 Injunctive Relief. Notwithstanding the preceding dispute resolution procedures, if Black Knight or Client makes a good faith determination that a breach of the terms of this Agreement by the other Party is such that the resulting damages to such Party will be so immediate or severe and incapable of adequate redress after the fact, such Party may seek a temporary restraining order and/or other immediate injunctive relief. If a Party making such a determination files a pleading with a court seeking such temporary restraining order or immediate injunctive relief and such pleading is successfully challenged by the other Party to this Agreement, the Party filing such pleading seeking a temporary restraining order or immediate injunctive relief will pay all of the costs and attorneys’ fees of the Party successfully challenging such pleading.
9.5 Limitation of Actions. No proceeding, regardless of form, arising out of or related to this Agreement or any Schedule or SOW may be brought by either Party more than two (2) years after the accrual of the cause of action, except that (i) proceedings related to violation of a Party’s proprietary rights or any duty to protect Confidential Information may be brought at any time within the applicable statute of limitations, and (ii) proceedings for non-payment may be brought up to two (2) years after the date the last payment was due.
9.6 Export Control. Both Black Knight and Client agree to comply fully with all relevant export laws and regulations of the United States to ensure that no information or technical data provided pursuant to this Agreement is exported or re-exported directly or indirectly in violation of law.
10. TECHNOLOGY SOLUTIONS HOSTED WITH CLOUD PROVIDERS
10.1 Applicability. Black Knight and Client acknowledge that the terms and conditions in this Section 10 (“Technology Solutions Hosted with Cloud Providers”) shall only apply in the event that the Technology Solutions provided by Black Knight and/or its Affiliates to Client and/or Client’s Affiliates under one or more Schedules are hosted using Cloud Providers.
10.2 Client Consent. Black Knight may use Cloud Providers to host certain of Black Knight’s Technology Solutions. Client acknowledges and consents to Black Knight’s, through it and its Affiliates (as applicable), use of Cloud Providers to host Technology Solutions provided to Client.
11.1 Assignment. Neither this Agreement, nor any rights, duties, or obligations of either Party under this Agreement, may be assigned or delegated in whole or in part by either Party, whether by operation of law or otherwise, without the prior written consent of the other Party, which consent may not be unreasonably conditioned, delayed or withheld. Notwithstanding the foregoing, consent will not be required for assignments in connection with mergers, acquisitions, divestitures, consolidations or corporate reorganizations by Client or Black Knight; provided, however, in no event may Client assign this Agreement or any of its rights or obligations under this Agreement to a Competitor of Black Knight. This Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. No assignment or delegation, in whole or in part, will release either Party from any of its obligations pursuant to this Agreement. Neither the terms of this Agreement, nor any performance under it, may be construed to create any rights in any person other than the parties to this Agreement.
11.2 Use of Name or Logo. Black Knight may include Client’s name or logo on Black Knight’s customer list and may describe briefly and in general terms the nature of the work performed by Black Knight for Client; provided, however, that Black Knight may not claim or suggest, implicitly or explicitly, that Client’s use of its Technology Solutions constitutes Client’s endorsement of its Technology Solutions without Client’s written consent. Black Knight may publish press release(s) regarding the relationship.
11.3 Force Majeure. Neither Black Knight nor Client will be responsible to the other for delays and/or failures in performance (other than payment obligations) resulting from acts beyond their control, including acts of God, strikes, lockouts, riots, acts of war, acts of terrorism, cyber-attacks, epidemics, pandemics, governmental regulations superimposed after the fact, fire, communication line failures, internet failures, power failures, earthquakes, or other disasters (individually and collectively, “Force Majeure”). Notwithstanding the foregoing, takeovers (hostile or otherwise), mergers, or acquisitions will not be deemed Force Majeure events. If either Party is unable to perform its obligations under this Agreement due to a Force Majeure event, passage of any law or any other similar force beyond the control of that Party for a period of more than thirty (30) days, then either Party may terminate this Agreement or any portion of this Agreement upon written notice to the other Party without obligation to pay any termination fees. If the affected Party elects not to terminate this Agreement, Client and Black Knight will negotiate prorated monthly charges based on the affected Technology Solutions and the period of time by which performance was prevented.
11.4 Waiver. The waiver of a breach of, or a default under, any term or condition of this Agreement may not be construed as a continuing waiver of any such term or condition, nor may a waiver of a breach of, or a default under, any term or condition be construed as a waiver of any breach or default under any other term or condition, or in any manner affect any other term or condition of this Agreement.
11.5 Severability. The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of this Agreement, for any reason, is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties.
11.6 Notices. Any legal notice or other communication required or permitted to be made or given to Black Knight pursuant to this Agreement will be in writing, in English, and will be deemed to have been duly given: (i) two (2) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when delivered if delivered personally or by express courier service; or (iii) when delivered if sent by email, provided a return receipt is received by the sender and a copy of the notice is promptly sent as provided in subsection (i) or (ii). All notices will be sent to Black Knight at its address as set forth below, to any additional persons specified in the Schedule, and/or at such other addresses as Black Knight may specify in writing.
|Black Knight Technologies, LLC|
601 Riverside Avenue
Jacksonville, Florida 32204
|With a copy of legal notices to:|
Black Knight Technologies, LLC
601 Riverside Avenue
Jacksonville, Florida 32204
Attn: General Counsel
11.7 Order of Precedence. If the provisions of a Schedule, SOW, and this Agreement are in conflict, then the provisions in the Schedule will take precedence, then this Agreement and then any applicable SOW.
11.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which is deemed an original, but all of which together constitute one agreement.
11.9 Entire Agreement. This Agreement constitutes the complete understanding of Black Knight and Client, supersedes any prior oral or written agreements, understandings, communications, requests for proposals, term sheets or letters of intent, and no representations other than those contained in this Agreement will be binding on either Party. No alteration, modification, or waiver of any provision of this Agreement will be valid unless in writing and signed by authorized Representatives of the parties. The parties agree that any pre-printed terms contained in Client’s purchase orders, acknowledgments, shipping instructions, or other forms or in Black Knight’s invoices, that are inconsistent with or different from the terms of this Agreement will be void and of no effect even if signed by the Party against which their enforcement is sought.
11.10 Electronic Signatures and Facsimiles Binding. This Agreement and associated Schedules and SOWs and related documents may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and each Party’s acceptance will be deemed binding between the Parties. Each Party acknowledges and agrees it will not contest the validity or enforceability of this Agreement and associated Schedules or SOWs and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.
12. DEFINITIONS AND INTERPRETATION
12.1 Definitions. For purposes of this Agreement, the following terms will have the definitions set forth below:
(a) “Affiliate” means an entity that, directly or indirectly controls, is controlled by, or under common control with, a Party to this Agreement, as represented by ownership of at least twenty percent (20%) of the voting stock (or other similar ownership interest if not represented by stock) of another entity.
(b) “Black Knight Material” means all Black Knight Confidential Information, Technology Solutions, Documentation, and all Intellectual Property and Intellectual Property Rights in and to any of them, which defined term also specifically includes Black Knight’s Affiliates’ Confidential Information, Technology Solutions, and any Documentation, and all Intellectual Property and Intellectual Property Rights in and to any of them.
(c) “Cloud Provider” means a third party that provides Black Knight and/or its Affiliates with Cloud Services used to host the Technology Solutions and/or where data, documents, services, components, modules, or information accessible via the Technology Solutions are stored. Cloud Providers utilized by Black Knight and/or its Affiliates may include, but are not limited to any of the following organizations (or any of such organization’s direct or indirect parent or subsidiary entities and/or affiliates): Amazon Web Services Inc., Microsoft Azure, Google Inc., IBM and Oracle Corporation.
(d) “Cloud Services” means, individually or collectively, offsite data center facilities, servers, networking equipment, storage media and/or host software systems provided by one or more Cloud Provider(s) and hosted in the United States.
(e) “Competitor” means any person, firm, corporation, company, partnership, entity, or enterprise engaged in the business of developing, marketing, or licensing software Technology Solutions or providing Professional Services that are in competition with the Technology Solutions or Professional Services provided by Black Knight or a Black Knight Affiliate.
(f) “Derivation” means any derivative work, improvement, modification, enhancement, customization, adaptation, or derivative of any kind of or to, from, or based on the original property, right, or item.
(g) “Documentation” means Black Knight-created user guides and manuals relating to or describing the use of the Technology Solutions and provided by Black Knight to Client.
(h) “Intellectual Property” means all ideas, processes, methods, concepts, systems, procedures, and inventions (whether patentable or not), works, software, computer programs, source code, object code, user interfaces, user experiences, mask works, trade secrets, know-how, data, databases, and confidential, proprietary, and other information, and other forms of intellectual property.
(i) “Intellectual Property Rights” means all: (i) patents and patent applications (including, without limitations, continuations, continuations-in-part, divisionals, reissues, and foreign and international counterparts), and all priority rights related thereto; (ii) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names, and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (iii) copyrights, and registrations and applications thereof; (iv) rights in or arising from trade secrets, know-how, and other confidential or proprietary information; (v) rights of publicity and moral rights which may be assigned or waived; and (vi) all other forms of intellectual property rights, whether now known or becoming known at any time in the future.
(j) “Professional Services” means services that are listed in one or more SOW(s) entered into pursuant to this Agreement which may include, but are not limited to, consulting, custom programming, data conversion, IP installation, project management, implementation, program modifications, and training.
(k) “Representatives” means the directors, officers, and employees of (i) Black Knight and its Affiliates, or (ii) Client and its Affiliates, as applicable based on the use in context.
(l) “Technology Solutions” means individually or collectively, the hardware, software, communications, systems, data products, and services provided by Black Knight and/or Black Knight’s Affiliates and made available to Client under Schedules and as set forth in greater detail in Documentation.
SUREFIRE CRM AND MORTGAGE MARKETING ENGINE (SMB)
MASTER ACCESS AGREEMENT
This Schedule for the Surefire CRM and Mortgage Marketing Engine (“Surefire SMB Schedule”) is entered into as of the date of the Client clicking “PLACE ORDER” (the “Surefire SMB Schedule Effective Date”), and is between Client and Black Knight. Individually, the Parties to this Agreement will be referred to as “Party” and collectively as the “Parties.” This Surefire SMB Schedule is subject to the terms and conditions of the Master Access Agreement to which this Surefire SMB Schedule is attached (the “Agreement”). The signer, on behalf of Client, acknowledges and agrees by registering, clicking the “PLACE ORDER” button and/or using Technology Solutions: (i) that he or she has authority to bind Client to the terms of this Surefire SMB Schedule; (ii) to be bound by all of the terms in this Surefire SMB Schedule, and (ii) that this Surefire SMB Schedule and the Agreement replaces and supersedes any previous agreement between Client and Black Knight governing use of the Technology Solutions. If conflicts arise between the terms of this Surefire SMB Schedule and the terms of the Agreement, the specific terms of this Surefire SMB Schedule will control.
1. TERM AND TERMINATION
1.1 Original Term. This Surefire SMB Schedule shall be effective on the Surefire SMB Schedule Effective Date and continue in full force and effect for one (1) year from the Commencement Date (the “Original Term”) unless this Surefire SMB Schedule is terminated in accordance with the termination provisions of the Agreement or this Schedule.
1.2 Extended Term. Unless either Party provides the other Party with written notice of non-renewal at least thirty (30) days prior to the end of the Original Term or any Extended Term, then this Surefire SMB Schedule shall automatically renew for an additional one (1) year period (each, an “Extended Term”) on the same terms and conditions as the Original Term; provided, however, fees for each Extended Term shall be at Black Knight’s then-current rates.
1.3 Termination for Convenience. Client may terminate this Surefire SMB Schedule without cause by providing thirty (30) days prior written notice to Black Knight. In the event of such early termination by Client, whether the required notice has been provided or not, Client shall, in addition to all other monies due and payable to Black Knight, pay as liquidated damages the unpaid portion of the Base Subscription Fees applicable to the remaining then-current Term. Client and Black Knight acknowledge that damages resulting from a claim under this Section are not readily ascertainable at this time, and the above amount of liquidated damages is reasonable under the circumstances.
2. TECHNOLOGY SOLUTIONS
2.1 Technology Solutions. In consideration of the fees set forth herein, Black Knight shall provide Client with access to the following Technology Solutions as set forth in greater detail in the Documentation:
(a) Surefire CRM and Mortgage Marketing Engine: a solution that supports the marketing of business directly to consumers and business contacts and facilitates marketing and co-marketing activities through one or more service modules and digital assets in the content library which may include Optional Use-Based Components, as set forth in greater detail in the Documentation.
2.2 Right to Access and Use. Subject to Client’s full payment of fees listed in this Surefire SMB Schedule, Black Knight hereby grants to Client, and Client accepts from Black Knight, a nonexclusive, non-assignable, and nontransferable right to access and use the Technology Solutions at the Installation Site(s), subject to the terms set forth herein, unless or until terminated in accordance with the terms of the Surefire SMB Schedule or the Agreement.
3. FEES AND PRICE ADJUSTMENTS
3.1 Fees. Client shall pay the fees as set forth on the sign-up page (the “Base Subscription Fee”). Optional Use-Based Components may be provided to Client at Black Knight’s then-current published rate(s), which are subject to change any time by written notice to Client. Written notice can include electronic posting on the relevant Black Knight website.
4. IMPLEMENTATION, TRAINING AND SUPPORT
4.1 Standard Implementation, Training and Support Services. In consideration for the fees set forth above, Black Knight will: (i) complete the standard initial configuration of the Surefire instance (“Implementation Services”); (ii) make available access to education and training materials through Black Knight’s knowledge base or other channel designated by Black Knight (“Training Services”); and (iii) provide Client with support related to the deployment of the Technology Solutions through access to available user guides, knowledge base materials, webinars and ticketing system (“Deployment Support Services”). Any Professional Services beyond Black Knight’s standard Implementation, Training or Deployment Support Services may only be provided under a separate SOW mutually agreed to in writing between the Parties.
5. CLIENT RESPONSIBILITIES
5.1 Client Responsibilities. Client will assign the necessary resources, personnel, connectivity, technology, hardware, and software to assist Black Knight in executing the activities covered by this Surefire SMB Schedule, including the provisioning of the appropriate technical and business personnel and resources necessary to allow Black Knight to implement Surefire. Black Knight’s performance under this Surefire SMB Schedule is predicated upon Client providing all such assistance as Black Knight may reasonably require in fulfilling its obligations under this Surefire SMB Schedule.
6. MAINTENANCE AND PRODUCTION SUPPORT
6.1 Maintenance. Black Knight shall provide Maintenance. Maintenance shall mean and include the remote correction and repairing of Defects, and if necessary, the amending or updating of Documentation to reflect such correction or repair (“Maintenance”). Black Knight shall not be responsible for maintaining the Technology Solutions when such services are resulting from Client’s failure to follow Black Knight’s reasonable instructions with respect to the Technology Solutions (one such example being the failure to deploy a recommended fix, update, hotfix, patch, service pack, or maintenance release). At Black Knight’s request, Client shall provide a description of a reported Defect in writing and in reasonable detail. Client is responsible for (i) testing of Technology Solutions and each update, and (ii) the control, review, and inspection of all output prepared utilizing the Technology Solutions.
6.2 Production Support. Black Knight shall provide Production Support to authorized subscribed users of the Technology Solutions. Production Support shall mean an issue in the production environment specific to the Technology Solutions and shall include remote assistance for diagnostics and help desk services limited to application support of the Technology Solutions (“Production Support”). Production Support does not include training, consulting, configurations, or assistance for Client’s networks, firewalls, hardware, or infrastructure. Professional Services in addition to Production Support will be billed pursuant to a mutually agreeable SOW. Client will permit Black Knight to access Client’s environments of the Technology Solutions in order for Black Knight to provide Production Support.
7. SPECIFIC TERMS AND CONDITIONS TO THE SUREFIRE AND MORTGAGE MARKETING ENGINE
7.1 Surefire Mobile Marketing Use. Client is responsible for mobile marketing messages and for ensuring the mobile marketing messages conform to commercially reasonable industry best-practices. Client shall not initiate any subsequent messages to any individuals after a Do Not Call or other opt-out or stop request has been made. Client is solely responsible for any claims or incidents that may result from Client’s decision not to enable STOP instructions. Black Knight shall have no responsibility for notifying Client of such opt-outs. Client acknowledges and agrees that Client shall have sole responsibility for obtaining any consents for uploaded mobile numbers and for complying with any terms and/or conditions that may govern these previously opted in mobile numbers, even if Client should use any mobile alert terms and conditions Black Knight makes available through the Technology Solutions. Client agrees that it will not access or otherwise use any third-party list of phone numbers or otherwise engage in unsolicited messaging in connection with the Technology Solutions. Additionally, Client agrees not to send messages to its users beyond the frequency represented in any disclosures or terms. Client hereby acknowledges that Black Knight merely provides Technology Solutions for facilitating the sending of Client’s text messages, and that Client shall have sole responsibility and liability for its messages and communications.
7.2 Additional Surefire Indemnity Obligation. Client will indemnify, defend, and hold harmless Black Knight Indemnitees, from and against all third-party claims for Indemnified Damages brought against any of the Black Knight Indemnitees to the extent based upon any content of Client’s messaging and/or consent for the delivery of commercial and marketing messages.
7.3 Surefire Disclaimer. Client bears all risk associated with and is responsible for all data Client transmits, stores, or otherwise makes available through the Technology. Black Knight explicitly disclaims any ownership of, or right, title and interest in data, information and files Client transmits and stores through the Technology Solutions. BLACK KNIGHT EXPRESSLY DISCLAIMS ALL LIABILITY AND ASSUMES NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO THE USE OF ANY DATA TRANSMITTED OR STORED THROUGH THE TECHNOLOGY SOLUTIONS.
8. GENERAL TERMS AND CONDITIONS APPLICABLE TO THE TECHNOLOGY SOLUTIONS
8.1 Configurations. As set forth in greater detail in the Documentation, the Technology Solutions may contain the ability for Client to implement Configurations or for Client to engage Black Knight to perform Configurations pursuant to a mutually agreeable SOW. Client acknowledges and agrees that the Technology Solutions are parameter driven products, the constraints of which are set by the Client, and as such, Client is responsible for the selection, testing, and implementation of any Configuration regardless of who makes the Configuration. Client may not make any modification to the Technology Solutions apart from the Configurations.
8.2 Hardware and Software Requirements. Client agrees to abide by any hardware (including but not limited to servers, mobile devices, personal computers, workstations, networking and equipment) and software requirements set forth in the Documentation. Client acknowledges that if there are any modifications to the hardware configuration or any supporting software without the express written consent of Black Knight then the Technology Solutions, third party integrations, workflow, third party software, reports, and end user usability may not perform properly.
8.3 Updates. Black Knight may, from time to time and in its sole discretion (and by means or media determined solely by Black Knight), make available subsequent functionality-based updates (each, an “Update”) for the Technology Solutions. Additional fees may be due in connection with subsequent Updates which embody substantial additional functionality to the extent Client elects to utilize such additional functionality. If applicable, Black Knight shall provide Client with updated Documentation for such new Update. Black Knight shall deploy, or otherwise make available, the new Update to Client’s Installation Site. Any support services not directly associated with the deployment and required by Client related to such new Update shall be billed to Client at Black Knight’s then-current rates pursuant to a mutually agreeable SOW. Client acknowledges that Black Knight will provide Maintenance and Production Support only for the most current Update.
8.4 System Use Restrictions. In addition to any matters described in the Documentation and notwithstanding anything in the Agreement or this Surefire SMB Schedule to the contrary, the following additional limitations and restrictions apply to the Technology Solutions:
(a) Client agrees not to allow users to share user login information. Client will be responsible for administering all user accounts, including new user set up, account suspension or deletion, and assigning appropriate work groups or security rights.
(b) Client agrees to not place nonpublic personal information in any environment other than the production and disaster recovery environments.
(c) Client agrees to notify Black Knight of any use or access to the Technology Solutions that does not originate from the United States, and to not allow access to the Technology Solutions to any entity or person located outside of the United States absent the express written consent of Black Knight. Client further acknowledges that Black Knight may place reasonable restrictions or conditions on foreign access to the Technology Solutions.
8.5 Data Contribution. As a condition to receiving access to the Technology Solutions, Client grants Black Knight a worldwide, perpetual, non-exclusive right to reproduce, manipulate, and use data and documents utilizing the Technology Solutions, including all data and documents ingested or stored in Black Knight’s databases, for the following purposes: (a) providing the Technology Solutions to Client, and (b) developing aggregated and anonymized analytics and derivative products for use by Black Knight, its Affiliates and clients. Client’s authorization of Black Knight to perform the processing described in subsection (b) of the immediately preceding sentence is subject to Black Knight: (i) deidentifying or removing personally identifiable data fields as necessary to render such data deidentified under applicable law using commercially reasonable practices, including, by way of example data such as borrower names, social security numbers, loan numbers, and taxpayer identification numbers (“Deidentified Data”), and (ii) providing Deidentified Data to third parties in such a way that the contributor of the data cannot be identified or re-identified using foreseeable methodologies. Deidentified Data shall not constitute personal information or non-public personal information under applicable law, including but not limited to the Gramm-Leach-Bliley Act or the California Consumer Privacy Act. Client represents and warrants it has the necessary authority to provide the data and documents hereunder for such purposes and that doing so will not violate any applicable federal, state or local privacy laws or regulations.
8.6 Additional Warranties. In addition to the warranties contained in the Agreement or herein, Client represents and warrants that: (i) it has performed its necessary due diligence regarding the selection of the Technology Solutions; (ii) Client is responsible for Client’s use of the Technology Solutions and the results obtained therefrom; and (iii) Client complies with all applicable laws pertaining to Client’s business, including but not limited to all local, state, and federal laws and regulations governing the regulation of marketing, privacy laws, consumer protection laws, and laws regarding mortgage lending. Client is responsible for all content it transmits, stores, or otherwise makes available through the Technology Solutions.
8.7 Legal Advice and Compliance Requirements. Nothing herein shall be construed, nor shall Black Knight deliver, any legal or compliance advice. While Client may receive suggestions and recommendations regarding configurations of Black Knight technology products and professional services, Client acknowledges that Client has the ultimate decision regarding the interpretation of any applicable law, rule, regulation, or guideline, and for reviewing and approving any recommendation, finding, or business rule prior to Client’s implementation of the same into the Technology Solutions.
The definitions set forth in the Agreement, are incorporated by reference as if fully stated herein. The following additional terms shall have the definitions set forth below:
9.1 “Commencement Date” shall mean the date that is thirty (30) days following the Surefire SMB Schedule Effective Date.
9.2 “Configuration” means a change to an adjustable component of the Technology Solutions and such adjustment does not include altering or writing of source code.
9.3 “CPI-U Index” means the U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price Index, U.S. City Average, Non-Seasonally Adjusted, for all Urban Consumers, All Items (’82-’84 = 100).
9.4 “Defect” shall mean a failure, malfunction, defect or non-conformity in the Technology Solutions which prevents the Technology Solutions from operating and performing in any material respect in accordance with the Documentation.
9.5 “Installation Site” shall mean the location(s) at which the Technology Solutions is installed and/or where data, documents, or information accessible via the Technology Solutions are stored, and may include cloud infrastructure not owned by Black Knight or an Affiliate.
9.6 “Optional Use-Based Components” shall mean components within the Technology Solutions provided on an as requested basis and are billed outside of the Base Subscription Fee. Optional Use-Based Components may include but are not limited to “Client for Life” and power messaging components.
9.7 “Term” shall mean the Original Term and every Extended Term.
Client and Black Knight have executed this Surefire SMB Schedule as of the Surefire SMB Schedule Effective Date.