Old Master Solution Agreement for OmegaFi Software and Support

In Effect: November 9, 2020 - April 7, 2021

INTRODUCTION

PLEASE READ THIS AGREEMENT CAREFULLY.

THIS MASTER SOLUTION AGREEMENT (this “Agreement”) is a legal contract between OMEGA FINANCIAL, LLC, d/b/a OMEGAFI, a Delaware limited liability company (“OmegaFi”, “Software Provider”, "Us", "We" or "Our") and you describing the services OmegaFi will provide to you, how we will work together and other aspects of our business relationship.

AGREEMENT PARTS. This Agreement is made up of the following parts:
1. Standard Terms and Conditions: This is where You can find the basics about how Our Services are provided. These terms apply to all of Our products and service offerings.
2. Financial Terms and Conditions: This is where You can find terms and conditions associated with any financial Services You have retained OmegaFi to provide. These terms apply to all of our product and service offerings involved with processing a payment.
3. Payment Processing Terms and Conditions: If the Financial Terms and Conditions apply, the Payment Processing Terms and Conditions also apply. This is where You can find terms and conditions associated with payment processing services OmegaFi may provide to You. The Payment Processing Terms and Conditions are located at https://www.omegafi.com/legal/payment-terms
4. Professional Services Terms and Conditions: This is where you will find any terms and conditions associate with professional services and only applies if Professional Services was selected on the Order Form.
5. Privacy Policy: This policy describes how we collect, receive, use, store, share, transfer and process your Personal Data in connection with your use of the Service. It also describes your choices regarding use, as well as your rights of access to and correction of your Personal Data. Our Privacy Policy is located at https://www.omegafi.com/privacy-policy
6. Acceptable Use Policy. This policy describes how we expect individuals to behave and use the Service. This policy also protects the interests of all of our clients and their customers, as well as our goodwill and reputation. The Acceptable Use Policy is located at https://www.omegafi.com/acceptable-use-policy
7. Your Order Form: This is the OmegaFi-approved form, signed by You, created following your purchase of one of our products or services. It contains the details about your purchase, including your subscription term, products purchased and your fees.
  
  By using our Service, you are agreeing to these terms and policies.
UPDATES TO AGREEMENT. OmegaFi reserves the express right to amend and modify this Agreement from time to time. Upon any amendment or modification, OmegaFi will provide notice to you (which notice may be generally provided on our website). The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the "Last Modified" date above will be updated to reflect the date of the most recent version. You can find archived versions of this Agreement at https://www.omegafi.com/legal/previous-msa. If you do not agree with a modification to this Agreement, you must notify us in writing within thirty (30) days after receiving notification of modification. If you give us this notice, your Service will continue to be governed by the terms and conditions of the Agreement prior to modification for the remainder of your current term. Upon renewal, the Agreement published on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

STANDARD TERMS AND CONDITIONS
Definitions
1. "990Pro" means the service Customer purchases to engage accountants and financial advisors to file Customer's IRS Form 990-N, 990-EZ, 990-T, 990, 1024 or other related tax documents as indicated by Customer. Purchasing this service may result in OmegaFi sending a separate engagement letter that shall control the terms of the engagement. To the extent the terms of such engagement letter are inconsistent with the terms hereof, the engagement letter shall govern. Customer acknowledges and agrees Customer will assist OmegaFi and its third party designees with the preparation of any IRS form, provide all the necessary information to OmegaFi or its third party designees, and OmegaFi and its third party designees shall have no responsibility to ensure the accuracy thereof or bear any liability for any inaccurate information provided by Customer. It is solely Customer's responsibility to ensure and confirm the accuracy of all information provided to OmegaFi or its designees.
2. "Affiliate" means any entity directly or indirectly controlling, controlled by or under common control by another entity. For purposes of this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of another entity, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
3. “BillPay Pro” means software to manage Customer’s accounts payable activity. BillPay Pro is software-as-a-service (SAAS) and is hosted in the OmegaFi data center and consists of a browser interface and management tool for Customer, data encryption, data access, data storage and ongoing support. Additionally, by using BillPay Pro, Customer authorizes OmegaFi to process certain payments, gifts or other financial transactions on its behalf subject to this Agreement.
4. “CCPA” means the California Consumer Privacy Act of 2018.
5. "Compass" means software to manage Customer's membership and donor records. Compass is software-as-a-service (SAAS) and is hosted in the OmegaFi data center and consists of a browser interface and management tool for Customer, a separate but related browser interface for Customer's Members and other authorized users to update records and conduct certain business with Customer, data encryption, data access, data storage and ongoing support. Additionally, by purchasing Compass, Customer authorizes OmegaFi to process certain payments, gifts or other financial transactions on its behalf subject to this Agreement.
6. "Confidential Information" means: (i) a Party's proprietary technology or computer software in all versions and forms of expressions and the Service, (the "Proprietary Technology"); (ii) manuals, notes, documentation, technical information, drawings, diagrams, specifications, formulas or know-how related to any of the Proprietary Technology; (iii) information regarding current or proposed products, Services, customers, members, donors, supporters, employees, credit card numbers, bank account information, contracts, audit and security reports, this Agreement, business methods, financial data or marketing data, financial results and projections, company and market strategy, product and competitive sales analysis and plans, product or marketing plans, pricing plans or structures, personnel and recruiting matters and future releases; and (iv) other information disclosed or submitted, orally, in writing, or by any other media, from one Party to the other that should be reasonably understood to be confidential given the nature of the information. Confidential Information may or may not be marked as “Confidential” or “Secret” or with words or marking of similar meaning, and the failure to make such notations upon the physical or electronic embodiments of any Confidential Information shall not affect the status of such information as Confidential Information. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation under this agreement, (ii) was known to the recipient prior to its disclosure by the other Party without breach of any obligation under this Agreement, (iii) is received from a third party without breach of any obligation under this Agreement, or (iv) was independently developed by the receiving party. Subject to the foregoing exclusions, Customer Data shall be Confidential Information.
7. “Customer” means the legal entity executing an Order Form that is purchasing Services from OmegaFi.
8. "Customer Data" means any data, information or material provided to OmegaFi or uploaded to the Service by or on behalf of Customer in the course of Customer using the Service.
9. "Customer Materials" means any Customer Data or other materials, provided by Customer, that are used in connection with the Service, Software or Service Deliverables, such as technical information and functional specifications, user data, logos, photographs, compilation of facts, artwork, animations, video or audio files, trademarked material or source materials for any of the foregoing.
10. "Customer Error Incident" means any Service unavailability related to Customer's applications, Customer Data, Customer's Equipment, or the acts or omissions of any User of the Service.
11. "Customer Equipment" means Customer's computer hardware, software and network infrastructure used to access the Service.
12. "Documentation" means any technical manuals, user documentation and other written materials relating to the operation and functionality of the Service that OmegaFi may provide to Customer.
13. "Extension App" means software which helps Customers manage extension opportunities on a particular college campus. The Extension App is software-as-a-service (SAAS) and is hosted in the OmegaFi data center and consists of a browser interface and management tool for Customer, a separate but related browser interface for Customer's Members and other authorized users to engage in certain extension activities with Customer, data encryption, data access, data storage and ongoing support. The Extension App will allow Customer to facilitate an unlimited number of extensions each year.
14. "Fulfillment" means service and support associated with sending gift confirmations, payment reminders, past due notices and gift acknowledgments and collecting funds donated to Customer. By purchasing Fulfillment, Customer authorizes OmegaFi to process certain payments, gifts or other financial transactions on its behalf subject to this Agreement.
15. “Government Customer” means you are a local, state or federal government entity that uses an OmegaFi product or service.
16. “GRS” means software which assists with managing both Customer's accounts receivable and accounts payable operations. GRS is software-as-a-service (SAAS) and is hosted in the OmegaFi data center and consists of a browser interface and management tool for Customer, a separate but related browser interface for Customer's Members and other authorized users to update records and conduct certain business with Customer, data encryption, data access, data storage and ongoing support. Additionally, by using GRS Customer also authorizes OmegaFi to (i) process certain payments, gifts or other financial transactions on its behalf subject to this Agreement, (ii) maintain and reconcile all authorized bank accounts, (iii) prepare regular financial statements for Customer, (iv) assist with budget preparation and management, (v) consult with Customer to make financial decisions, (vi) prepare and manage payroll, as needed, (vii) prepare and send IRS Form 1099 each year and (viii) manage fixed asset schedules. Customer agrees to use GRS as the exclusive service for the management of financial activity and for collecting dues, assessments, and charges, and any other accounts receivable of Customer.
17. “ICS” means software which assists Customer with registering and managing recruitment activities. ICS is software-as-a-service (SAAS) and is hosted in the OmegaFi data center and consists of a browser interface and management tool for Customer, a separate but related browser interface for Customer's potential new members and event registrants and other authorized users to update records and conduct certain business with Customer, data encryption, data access, data storage and ongoing support. Additionally, by using ICS, Customer authorizes OmegaFi to process certain payments, gifts or other financial transactions on its behalf subject to this Agreement.
18. "Implementation Services" means the initial services provided to Customer as may be described in the Order Form attached to this Agreement or in a Statement of Work.
19. "Intellectual Property Rights" means copyrights, trademarks, service marks, trade names, patents, trade secrets, database rights, design rights and other related proprietary or statutory rights that have been or subsequently exist pursuant to all applicable laws, statutes, regulations, treaties or common law in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded.
20. "LegFi" means software which assists Customer with collecting dues, assessments and charges from Customer's Members, and other accounts receivables. LegFi is software-as-a-service (SAAS) and is hosted in the OmegaFi data center and consists of a browser interface and management tool for Customer, a separate but related browser interface for Customer's Members and other authorized users to update records and conduct certain business with Customer, data encryption, data access, data storage and ongoing support. Additionally, by using LegFi, Customer authorizes OmegaFi to process certain payments, gifts or other financial transactions on its behalf subject to this Agreement. Some local fraternity and sorority chapters and house corporations may not be permitted to use LegFi subject to any other agreements between OmegaFi and that local fraternity or sorority’s inter/national headquarters.
21. "Login" means the username and password selected or assigned by Customer or us for each User.
22. "Malicious Code" means any computer viruses, worms, Trojan horse programs or any other software that is intended to damage or alter a computer system or data.
23. "Maintenance Releases" means Software updates or latest versions, including bug fixes, maintenance, support, modifications, additions and enhancements developed after the Effective Date that OmegaFi generally makes available to its customers of the Service.
24. “New Colony Discount” means a reduction in fees Customer owes OmegaFi when a fraternity or sorority Customer is considered a new colony. This fee discount is in effect until the new colony receives its charter from its inter/national headquarters or for two years from the date the organization begins using the service, whichever comes first.
25. "OmegaOne" means software which helps Customer engage with its members through a variety of communication, social, event management, safety and security features and tools. OmegaOne is software-as-a-service (SAAS) and is hosted in the OmegaFi data center and consists of a browser interface and management tool for Customer, a separate but related browser interface for Customer's Members and other authorized users to engage in certain social and business activities with Customer, data access, data storage and ongoing support. Additionally, by purchasing OmegaOne, Customer authorizes OmegaFi to process certain payments, gifts or other financial transactions on its behalf subject to this Agreement.
26. "OmegaRecruit" means software which helps Customer manage recruitment and voting activities. OmegaRecruit is software-as-a-service (SAAS) and is hosted in the OmegaFi data center and consists of a browser interface and management tool for Customer, a separate but related browser interface for Customer's Members and other authorized users to engage in certain recruitment activities with Customer, data access, data storage and ongoing support.
27. "OmegaSites" means software which helps Customer produce and maintain a public-facing website. OmegaSites is software-as-a-service (SAAS) and is hosted in the OmegaFi data center and consists of a browser interface and management tool for Customer, data access, data storage and ongoing support. OmegaFi agrees to (i) provide at least three (3) different website designs for Customer to select from, and (ii) provide a specific URL address, subject to availability, for the website if Customer requests one. SSL certificates associated with OmegaSites may be available, at Customer’s request, and OmegaFi’s approval, for an additional fee. Customer understands that some portions within the website may not be editable and may be controlled by Customer’s inter/national headquarters.
28. "Order Form" means OmegaFi's standard order form that is signed by the Parties whereby OmegaFi agrees to supply certain Software, products or Services pursuant to the terms and conditions of this Agreement.
29. "Professional Services" means certain professional services (excluding the Services) outside of Implementation Services, if applicable, and which may be further described through a Statement of Work.
30. "Service" means the hosted, on-demand or web-based service offered by OmegaFi as described in the Order Form.
31. "Service Deliverables" means the items to be delivered to Customer in connection with the Professional Services OmegaFi performs pursuant to a Statement of Work, which does not include the Software.
32. "Software" means those components of proprietary OmegaFi software and Third Party Software, if any, as set forth in an Order Form, together with Maintenance Releases that are provided in connection with such software and made available through the Service under this Agreement.
33. "Statement of Work" or "SOW" means an agreement between the Parties setting forth the agreed upon scope of the Professional Services, Service deliverables, estimated hours work effort, billing rates and other pricing information, project schedule (if applicable) and estimated delivery dates. All Statements of Work shall be deemed incorporated into this Agreement.
34. "Technology" means all of OmegaFi's proprietary technology (including software modules, database or content within the database, hardware, products, Services, processes, algorithms, user interfaces, URLs, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Licensor in providing the Service.
35. "Third Party Software" means certain software supplied by third parties that OmegaFi resells, distributes or otherwise provides access to as part of the Service. Customer's use of Third Party Software is governed by the license terms that either come with the Third Party Software or are published by the applicable Third Party Software owner.
36. "User" means any individual accessing or using the Software who is authorized by OmegaFi or Customer.
37. "Vault" means software which assists with managing both Customer's accounts receivable and accounts payable operations. Vault is software-as-a-service (SAAS) and is hosted in the OmegaFi data center and consists of a browser interface and management tool for Customer, a separate but related browser interface for Customer's Members and other authorized users to update records and conduct certain business with Customer, data access, data storage and ongoing support. Additionally, by using Vault, Customer authorizes OmegaFi to process certain payments, gifts or other financial transactions on its behalf subject to this Agreement. Customer agrees to use Vault as the exclusive service for the management of financial activity and for collecting dues, assessments, and charges, and any other accounts receivable of Customer.
38. "Vault Payroll" means services Customer purchases to assist with providing payroll services to Customer's employees. Customer understands that OmegaFi does not directly provide payroll services, and OmegaFi is hereby authorized to act on behalf of Customer to engage a third party payroll services provider (the “Payroll Provider”). Customer agrees to execute and be bound by any agreement which may be required by the Payroll Provider before commencement of the Services. OmegaFi has no responsibility with respect to any federal, state or local tax obligations that accrued prior to commencement of payroll services, and such responsibilities rest solely with Customer and Customer's previous payroll provider, if any. Customer agrees to provide complete and accurate information to OmegaFi/Payroll Provider to enable Payroll Provider to perform its duties, and to supplement any additional information or notify Payroll Provider/OmegaFi of any changes to any of the information provided. Such information shall include, but not be limited to, name of employee(s), wages earned, dates and all other necessary information. Customer agrees to indemnify and forever hold harmless OmegaFi and Payroll Provider from any and all liability, cost, expenses, including attorneys’ fees, claims and actions, caused/accruing/arising out of Customer's failure to provide sufficient funds to make payments to Customer's employees.
39. "VaultPro" means Vault plus managed financial services whereby Customer authorizes OmegaFi to (i) maintain and reconcile all authorized bank accounts, (ii) prepare regular financial statements for Customer, (iii) assist with budget preparation and management, (iv) consult with Customer to make financial decisions, (v) prepare and manage payroll, as needed, (vi) prepare and send IRS Form 1099 each year and (vii) manage fixed asset schedules
Service
1. Service & Maintenance Releases. OmegaFi will provide Customer with the use of the Service, which may include a browser interface and encrypted login (when required), transmission, access to and storage of Customer Data. OmegaFi may at its sole discretion enhance the Service or provide Maintenance Releases from time to time, at no cost or expense to Customer. Except as stated herein, Customer may not customize the Service without OmegaFi's prior written consent.
2. Users. Each User may be required to have a Login with unique user identification. OmegaFi specifically reserves the right to restrict or terminate a User's access upon any actual or perceived unauthorized use of a Login. OmegaFi may require a User to alter any password if OmegaFi believes it is no longer secure. User shall not permit anyone other than him/herself to use User’s Login to access the Service. User shall not share Login accounts, user identifications or passwords with anyone. User shall not deactivate a named individual's access to the Service and assign such access to another named individual without OmegaFi's prior written consent. User is liable for all access to the Services and activities conducted by any individual accessing the Service using User’s Login, including such individual's compliance with the terms herein. User agrees to notify OmegaFi immediately if User suspects any unauthorized use of a Login or access to any password.
3. Hosting. Except as stated herein, OmegaFi will maintain the Service and Customer Data at one of OmegaFi's reputable internal and/or third party internet service provider and hosting facilities, where it is subject to commercially reasonable security precautions to prevent unauthorized access to the Service. The security of Customer Data and the maintenance of Customer Data shall comply with industry standards for the type of information maintained. However, Customer acknowledges that, notwithstanding such security precautions, use of or connections to the internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Service. The Parties agree OmegaFi shall not under any circumstances be held responsible or liable for situations (i) where Customer Data or transmissions are accessed by third parties through illegal or illicit means or through the negligence of Customer or Customer's Users, or (ii) where the Customer Data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws that could not have been reasonably foreseeable to OmegaFi (collectively, a "Security Breach"). OmegaFi will use diligent efforts to remedy any Security Breach that permitted unauthorized access.
4. Third Party Providers. Customer acknowledges that some aspects of the Service are not provided by OmegaFi directly, and that OmegaFi may from time to time contract with a third party on Customer's behalf to provide specific services for Customer (“Third Party Providers”), and Customer hereby expressly grants to OmegaFi the authority to take such actions. In addition, Users may have the opportunity to engage in commercial transactions with other Users and Third Party Providers. Users understand that all transactions relating to any merchandise or services offered by any Third Party Providers, including but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the Third Party Provider and User. OmegaFi is authorized to release any Confidential Information and Customer Data to a Third Party Provider for the sole and limited purpose of performing the Services and taking any actions in connection with this Agreement.
Professional Services. OmegaFi may provide Customer Professional Services in accordance with this Agreement and the applicable Service Order or Statement of Work. The Professional Service Terms and Conditions governs professional services.
Restrictions on Use. Except as stated herein, User shall use the Service solely for User’s internal business purposes as contemplated by this Agreement, in compliance with applicable law and our Acceptable Use Policy. If Customer or User engages in activity that is not a legitimate use of the Service, such as security penetration tests, stress tests, spamming activity, any activity prohibited by this section, or other activity for which the Service is not intended, such use will be considered a material breach of this Agreement, and OmegaFi may shut down Customer's or User’s Service until such activity ceases, with such Service interruption not being counted against any Service Availability (as defined below).
Customer & User Responsibilities
1. General Responsibilities. Customer and User agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's and User’s use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. Customer and User shall (i) notify OmegaFi immediately of any unauthorized use of any Login or any other known or suspected breach of security, and (ii) report to OmegaFi immediately and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by Customer or User to be infringing or unlawful.
2. Connectivity Responsibilities. Customer and User shall be responsible for any costs in connection with establishment and maintenance of internet connectivity to the Services, including (without limitation) telephone, communications, internet service provider costs, computer hardware, modem, fees charged by third parties, insurance, internet access software, or any other costs incurred by Customer or User in accessing the Service.
3. Responsible Person. Customer agrees to appoint at least one (1) person who is a duly-authorized representative of Customer who shall serve as the contact person with OmegaFi to ensure Customer performs its obligations according to this Agreement (the “Responsible Person”).
Service Availability
1. Internet Availability & Disruptions. OmegaFi does not control the flow of data to or from Customer's internet hosts and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions caused by internet service providers can produce situations in which Customer's connections to the internet may be impaired or disrupted ("Internet Disruptions"). Customer hereby agrees that OmegaFi shall not be liable for any Service delays arising from any Internet Disruptions.
2. Service Availability. OmegaFi shall make reasonable efforts to provide production environment service availability of 99% measured on a quarterly basis ("Service Availability") not including (i) Customer Error Incidents, (ii) Force Majeure and (iii) Internet Disruptions. Any interruption in the Service shall not be considered a breach of OmegaFi's obligations hereunder if: (1) OmegaFi promptly takes all reasonable steps to restore the Service, or (ii) the interruption in Service results from a Customer Error Incident, a Force Majeure or due to an Internet Disruption.
Customer Data
1. Data Usage & License. Customer owns all Customer Data. OmegaFi does not own any Customer Data. Customer, not OmegaFi, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use all Customer Data, and OmegaFi shall not be responsible or liable for: (i) damages resulting from Customer's reliance on such Customer Data and/or (ii) the deletion, correction, destruction, damage or loss of any data that result from Customer's actions. OmegaFi is not responsible for restoring lost data or damage to Customer Data that results from Customer's actions. Customer hereby grants to OmegaFi a non-exclusive, fully-paid and royalty-free license to reproduce, distribute, perform, display and otherwise use the Customer Data solely to provide the Service to Customer according to this Agreement. Customer represents and warrants that: (i) Customer owns or otherwise has the right to grant the license set forth in this section, (ii) the Customer Data does not violate the privacy rights, publicity rights, copyright rights or other rights of any person or entity. OmegaFi reserves the right (but has no obligation) to investigate and take action in its sole discretion against Customer if Customer violates this provision or any other provision of this Agreement, including without limitation, removing Customer Data from the Service, terminating the Agreement, reporting Customer to law enforcement authorities, and taking legal action against Customer.
2. Providing Data. Customer agrees to electronically provide OmegaFi with the information, financial records and other data necessary to populate the Software and facilitate the terms of this Agreement in such detail and format as reasonably requested by OmegaFi. Customer agrees to pay Customer’s own costs and expenses in connection with providing this data to OmegaFi.
3. Data Access & Disclosure. Customer grants to OmegaFi and its licensors the right to access and disclose Customer Data as necessary to comply with applicable laws and government requests, to operate, provide and maintain the Services, to protect itself or its customers, and to evaluate and improve the performance and implementation of the Service. OmegaFi reserves the right to perform statistical analysis of user behavior and characteristics and to provide aggregated or statistical analyses of data derived from the Services to third parties, provided that the information is presented in a manner which does not disclose the identity of the Customer. Customer agrees that OmegaFi owns all right, title and interest in any such anonymous statistical analyses and may use and publish such information, provided such information does not identify Customer.
4. Fraternity and Sorority Specific Data and Access. Fraternity and Sorority Customers and Affiliates agree that OmegaFi is authorized to share Customer Data with Customer's inter/national headquarters and associated foundation. In the event of a crisis, closure, or suspension involving Customer, as determined in the reasonable discretion of OmegaFi, Customer agrees to allow its inter/national organization to both access and manage its account with OmegaFi.
5. Customer Obligations. Customer acknowledges and agrees that Customer is solely responsible for ensuring compliance with any applicable data and privacy protection laws, codes of practice or other legal obligations associated with the collection, use and disclosure of personal information, including disclosure to OmegaFi as necessary for OmegaFi to provide the Services and for Customer's use of the Services.
6. USA Processing. Customer consents, on Customer's behalf and on behalf of any other person for which Customer provides Information, including any User, to the processing of Customer Data in the United States of America.
7. Data Transfer & Retention. Upon termination of this Agreement for any reason, Customer shall promptly remove all Customer Data from the Software at Customer’s sole risk and expense. If Customer is unable to remove Customer Data on its own, before termination and up to 30 days after the date of termination, Customer, at Customer’s option, may request and enter into a separate data conversion agreement with OmegaFi. This separate data conversion agreement will outline the responsibilities of both parties, including the obligation of Customer to pay OmegaFi’s then current data conversion fees then in effect, and the timeline for completing the data conversion project. OmegaFi will not provide Customer Data unless all amounts due and owing for the Service have been paid by Customer. After such 30-day period, if no request has been received, OmegaFi shall have no obligation to retain any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession. OmegaFi shall not be liable to Customer or any third party as a result of such destruction for any reason or under any legal theory whatsoever.
8. Additional Provisions for California Personal Information.
  1. This section shall only apply with respect to California Personal Information.
  2. When processing California Personal Information in accordance with Customer’s instructions, the parties acknowledge and agree Customer is a business and OmegaFi is a Service Provider for purposes of the CCPA.
  3. The parties agree that OmegaFi will process California Personal Information as a Service Provider strictly for the purpose of performing the Service under this Agreement,
  4. The parties agree that OmegaFi shall not (a) Sell California Personal Information (as defined in the CCPA); (b) retain, use or disclose California Personal Information for any purpose other than for the specific purpose of providing the Service, including retaining, using or disclosing personal information for a Commercial Purpose. For the avoidance of doubt, the foregoing prohibits OmegaFi from retaining, using or disclosing California Personal Information outside of the direct business relationship between Customer and OmegaFi.
  5. The parties acknowledge and agree that OmegaFi’s access to Personal Information is not part of the consideration exchanged by the parties in respect of the Agreement.
  6. The terms ‘Commercial Purpose,” “Sell,” and ‘Service Provider” shall have the meanings given in the CCPA. “Personal Information” means any information that OmegaFi has at any time, whether before or after the date this Agreement is entered into, collected, accessed, received, used, disclosed or otherwise processed on behalf of Customer in relation to OmegaFi’s provision of the Service to Customer under the Agreement and that constitutes “personal information” under the CCPA.
Intellectual Property Ownership
1. OmegaFi Intellectual Property. All right, title and interest, including all Intellectual Property Rights, in and to the Software, Service, Technology, Documentation and training materials OmegaFi provides are owned by OmegaFi or its suppliers, as applicable, and are protected by intellectual property laws, including copyright, patent, trademark, and/or trade secret laws. Professional Services and Service Deliverables provided by OmegaFi to Customer are not performed on a "work for hire" basis. Customer hereby assigns to OmegaFi any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Software, Service, Documentation or Technology. OmegaFi may use such submissions as it deems appropriate in its sole discretion. This Agreement is not a sale and does not convey to Customer any rights or ownership in or related to the Software, Service, Documentation, Technology or the Intellectual Property Rights owned by OmegaFi and its suppliers. The OmegaFi name, the OmegaFi logo, and the product names and logos associated with the Service are trademarks or service marks of OmegaFi or its suppliers, and no right or license is granted to use them. Customer will not accrue any residual rights to the Software, Technology, Documentation or Service, including any rights to the Intellectual Property Rights in connection therewith. Customer will not remove, deface or obscure any of OmegaFi's or its suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Service. Any rights not expressly granted herein are reserved to OmegaFi and its licensors, as applicable.
2. Customer Intellectual Property Rights. All right, title and interest (including all Intellectual Property Rights) in and to the Customer Materials are owned by Customer or Customer's supplies. Customer understands and acknowledges that in order for OmegaFi to fulfill the terms of this Agreement, OmegaFi must use Customer Materials. Customer hereby grant OmegaFi a royalty-free, non-exclusive, limited license to use without charge any and all Customers Materials for the purposes contemplated by this Agreement. Customer understands and acknowledges OmegaFi has made pricing concessions, and no further payment or royalty to Customer or any other entity affiliated with Customer is required for the limited license to use Customer Materials. Customer further agrees to reimburse OmegaFi for any royalty or other payment OmegaFi incurs to use Customer Materials.
Fees and Payment for Services
1. Free Trial Period. If Customer registers for a free or discounted trial period (the "Free Trial Period") or if a Free Trial Period option is selected on an Order Form, OmegaFi will make the applicable Service available to Customer on a trial basis at the agreed-upon discounted or free rate until the earlier of (a) the end of the Free Trial Period (if not earlier terminated) or (b) the start date of Customer's paid Services. If Customer does not cancel the Service during the Free Trial Period, Customer agrees to pay the agreed-upon fees for the Service once the Free Trial period ends. Unless Customer purchases the Services before the end of the Free Trial Period, all Customer Data used in the Services may be permanently deleted at the end of the Free Trial Period, and OmegaFi will not recover it. If OmegaFi includes additional terms and conditions on the Free Trial Period registration page, those will apply as well. Customer may terminate the Service without penalty at any time during a Free Trial Period.
2. Fees. Unless otherwise provided for in this Agreement, all fees for specific Services selected on the appropriate Order Form or activated from within an OmegaFi application will be disclosed on the Order Form or within the application at time of activation. Unless otherwise stated in a particular Order Form or application, such fees shall be paid in advance, in accordance with the billing frequency stated. If Customer provides a valid credit card to pay an invoice, or if Customer provides valid bank account information, Customer authorizes OmegaFi to charge Customer's credit card or debit Customer's bank account, as applicable, for all Services, Professional Services and according to the billing terms listed in the Order Form. Except as set forth herein, all payment obligations are non-cancelable and all amounts paid are nonrefundable. Fees are not subject to set-off or reduction by Customer without OmegaFi's prior written consent.
3. Confidential Terms. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
4. Taxes. Except for taxes based on OmegaFi's income, Customer is responsible for payment of all sales, use, gross receipts, excise, access, bypass or other taxes, levies or duties imposed by taxing authorities.
5. Due Date. All undisputed invoices are due within thirty (30) days of invoice date unless state law provides Customers a longer time to pay invoices. All payments for Services will be paid in US dollars. Where permitted by applicable law, any undisputed payment not made when due will be subject to a late charge of 1.5% per month or the maximum rate permitted by law (whichever is less). Customer shall reimburse OmegaFi for any of OmegaFi's reasonable attorney's fees or other costs of collecting past due amounts.
6. Restricted Access. In addition to any other rights granted to OmegaFi herein, OmegaFi reserves the right to suspend or terminate this Agreement and Customer's access to the Service if Customer's undisputed balances remain unpaid for more than sixty (60) days.
7. Other Remedies. If Customer becomes more than 30 days past due on any undisputed invoice due to OmegaFi or an OmegaFi Affiliate, Customer authorizes OmegaFi to apply monies collected by OmegaFi on Customer's behalf to any undisputed balance due to OmegaFi or an OmegaFi Affiliate. In the event such actions are not sufficient to completely satisfy such obligations, OmegaFi shall be entitled to pursue any remedy available to it under this Agreement or at law, and nothing herein shall be construed to limit any method of recourse for OmegaFi.
Term and Renewal. The Initial Term of this Agreement will commence upon the Effective Date and shall be for the term specified in the Order Form. After the Initial Term, this Agreement shall automatically be extended according to any renewal provisions specified on the Order Form.
Termination
1. Termination Generally. Except for any special situations outlined in this section, the termination provisions for the Service are stated in your Order Form.
2. Termination for Bankruptcy. Subject to applicable law, either Party may terminate this Agreement immediately with notice to the other Party (the "Other Party") if: (i) a receiver is appointed for the Other Party or the Other Party's property; (ii) the Other Party makes an assignment for the benefit of the Other Party's creditors; (iii) any proceedings are commenced by, for or against the Other Party under any bankruptcy, insolvency or debtor's relief law; or (iv) the Other Party commences steps to liquidate, dissolve or wind-up its business.
3. Special Termination Situations for Fraternity and Sorority Chapters. In the event Customer is a fraternity or sorority local chapter affiliated with a particular college or university (a "Local Chapter Customer"), the following unique termination provisions apply:
  1. Subject to OmegaFi's approval, which approval shall not be unreasonably withheld, Local Chapter Customer may terminate this Agreement without incurring any additional fees upon sixty (60) days written notice to OmegaFi of Local Chapter Customer's loss of official recognition and status from both Local Chapter Customer's college/university and the Local Chapter Customer's national/international headquarters/organization.
  2. Local Chapter Customer may not terminate this agreement or discontinue the use of any Service if Local Chapter Customer's parent organization or inter/national headquarters has an agreement with OmegaFi to provide a particular Service to Local Chapter Customer.
4. Access to Data After Termination. Upon termination of this Agreement for any reason, the provisions of section 9g about Data Transfer and Retention shall govern the disposition of Customer’s Data.
Representations and Warranties. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, OMEGAFI PRODUCTS AND SERVICES ARE PROVIDED BY OMEGAFI AND ACCEPTED BY CUSTOMER "AS IS" AND "AS AVAILABLE". EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NON-INFRINGEMENT OR QUIET ENJOYMENT. CUSTOMER ACKNOWLEDGES THAT THERE ARE INHERENT RISKS IN INTENET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER PRIVACY AND PROPERTY, INCLUDING CONFIDENTIAL INFORMATION. OMEGAFI ASSUMES NO LIABILITY FOR ANY DAMAGE, THEFT OR LOSS TO CUSTOMER'S PROPERTY (INCLUDING, WITHOUT LIMITATION, CUSTOMER EQUIPMENT AND CUSTOMER DATA) RESULTING FROM THE ACTS OR OMISSIONS OF ANY THIRD PARTY, INLCUDING WITHOUT LIMITATION, ANY UNAUTHORIZED PHYSICAL OR NON-PHYSICAL ACCESS. ANY SUCH DAMAGE OR LOSS WILL BE THE EXCLUSIVE RESPONSIBILITY OF THE THIRD PARTY WHO CAUSED SUCH LOSS OR DAMAGE.
Limitation of Liability
1. Limitation of Liability. TO THE EXTENT ALLOWED BY LAW, IN NO EVENT SHALL OMEGAFI OR OMEGAFI AFFILIATES BE LIABLE FOR INDIRECT, INIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR, OR COSTS INCURRED AS A RESULT OF, LOSS OF TIME, LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING, EVEN IF OMEGAFI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OMEGAFI SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY PROVIDER GOODS AND SERVICES OFFERED THROUGH THE SITE.
2. Liability Limit. IN NO EVENT SHALL OMEGAFI'S AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AGGREGATE PAYMENTS MADE BY CUSTOMER IN THE FIRST TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM.
3. Other Relief. Customer also agrees any violation of this Agreement may cause irreparable harm to OmegaFi and monetary damages may not be an adequate remedy. Customer therefore agrees OmegaFi shall be entitled to any equitable relief, including a temporary restraining order, preliminary injunction or permanent injunction by an appropriate court in the appropriate jurisdiction, enjoining Customer from any violation or threatened violation of this Agreement, in addition to any monetary damages which might occur by reason of Customer's breach of this Agreement.
Indemnification. To the extent allowed by law, each party shall indemnify and hold harmless the other party, including Affiliates and each of their respective officers, directors, shareholders, employees representatives, agents, successors and assigns from and against all claims of third parties and all associated losses, to the extent arising out of (a) a party's gross negligence or willful misconduct in performing any of its obligations under this Agreement, or (b) a material breach by a party of its representations, warranties, covenants or agreements under this Agreement. The above defense and indemnification obligations (x) do not apply to the extent a claim against Customer arises from Customer's use of the Service in violation of this Agreement or any applicable Order Form and (y) shall be Customer's sole and exclusive remedy for any third party claim of infringement or misappropriation of intellectual property rights.
Confidential Information
1. Each Party receiving Confidential Information shall (i) protect the confidentiality of the Confidential Information with at least the same degree of protection that it uses with its own Confidential Information, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except Third Party Providers and Affiliates as needed who have agreed to be bound by the confidentiality terms of this Agreement), and (iv) limit access to Confidential Information to its employees, contractors, advisors, representatives and agents who are on a need to know basis in order to perform its obligations under this Agreement.
2. Upon written advance notice to the other Party (unless such notice would violate applicable law), one Party may disclose Confidential Information if required to do so under any federal, state or local law, statute, rule, regulation, subpoena or legal process.
3. OmegaFi's Privacy Policy applies to this Agreement, and its terms are incorporated herein and by this reference made a part thereof. To view OmegaFi’s Privacy Policy, visit https://www.omegafi.com/privacy-policy
Miscellaneous
1. Entire Agreement. This Agreement, together with all exhibits, schedules, Order Forms, Statements of Work, addenda and other amendments hereto entered into from time to time, collectively, contains the entire agreement between the Parties with respect to the matters set forth herein and supersedes all prior negotiations, writings or other understanding between the parties with respect to the subject matter of this Agreement. This Agreement may not be modified except by a written instrument signed by the Parties hereto or their successors and assigns referring to the particular provisions to be modified. All terms, conditions or provisions which may appear as pre-printed language or otherwise be inserted within any purchase order shall be of no force and effect notwithstanding the acceptance of such purchase order after the date of this Agreement. If any provision of this Agreement, shall for any reason or to any extent be held void, voidable, or otherwise unenforceable by any court, the remainder of the provisions hereof and the application of such provisions to other persons or circumstances shall remain in full force and effect. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original for all purposes. If a Party executes this Agreement via electronic signature, then such electronic signature shall be deemed to be such Party's original signature. The exchange of copies of this Agreement and of the signature pages by electronic transmission shall be considered the original Agreement for all purposes.
2. Force Majeure. Except for Customer's obligation to make payments under this Agreement and notwithstanding anything to the contrary in this Agreement, no Party shall be responsible or liable for failure to perform or for delay in performance or any damages because of delays in any of its obligations hereunder that are due to causes beyond its reasonable control. Such causes shall include acts of God, acts of terrorism, acts of civil or military authority, earthquakes, fires, floods, epidemics, quarantine restrictions, accidents, war, riot, transportation, electrical, internet or telecommunication interruptions or slowdowns, vandalism or "hacker" attacks, strikes (other than those involving either Party's employees), or intervention by governmental authority (each such event, a “Force Majeure”); provided that such Party gives prompt written notice thereof to the other Party. Any failure occasioned by the foregoing shall be remedied as soon as reasonably possible.
3. Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after mailing via certified mail or overnight courier, return receipt requested; or (iii) the first business day after sending by email to the email address on the signature page for Customer and the designated email below for OmegaFi, except that notices of termination, breach of this Agreement or an indemnifiable claim may not be sent by email. All notices to Customer shall be addressed to the Responsible Person at the address provided by Customer to OmegaFi and held in the OmegaFi account for Customer. OmegaFi may give electronic notices by email to all email address(es) on record in OmegaFi's account information for Customer. All notices required to be given to OmegaFi under this Agreement shall be delivered in writing to the following address: 1300 Sixth Avenue, Columbus, GA 31901, Attention: General Counsel or by email to legal@omegafi.com.
4. Governing Law. The laws and regulations of the United States of America and the State of Delaware, as amended, govern this Agreement and all transactions under this Agreement. The parties agree and consent that any cause of action arising under, out of or in any manner relating to this Agreement and any Arbitration proceedings shall be brought in the city of Wilmington, Delaware. The parties irrevocably waive, to the fullest extent permitted by law, any claim, defense or objection which they may now or hereafter have to any proceeding which is brought in such a court where such claim, defense or objection is based on any alleged lack of jurisdiction, improper venue, forum non conveniens, or any similar basis. EACH PARTY ALSO HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT. In the event legal action is necessary to enforce this Agreement, the prevailing party has the right, subject to applicable law, to payment by the other party of all reasonable attorneys' fees and costs, including any appeal and any post-judgment actions, as applicable.
5. Arbitration. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS AGREEMENT MUST BE ASSERTED INDIVIDUALLY IN BINDING ARBITRATION CONDUCTED BY A SINGLE ARBITRATOR ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE AAA SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES. The arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. To the extent allowed by the applicable law, the arbitrator shall have the exclusive authority to resolve any dispute relating to this Agreement. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The Federal Arbitration Act of the United States shall apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. Each Party shall be responsible for its own costs of the arbitration, including travel, fees and expenses of counsel, and expert and witness fees. Each Party shall be responsible for paying 50% of the fees charged by the arbitrator.
6. Successors and Assigns. You may not assign or transfer this Agreement, by operation of law or otherwise, without the prior written consent of OmegaFi, which consent may be withheld in OmegaFi’s sole and absolute discretion. OmegaFi's rights and privileges hereunder may be assigned to: (i) an Affiliate of OmegaFi, or (ii) a person, firm, organization, or corporation which is succeeding to any part or all of the business of OmegaFi at any time and in the sole discretion of OmegaFi, in each case, without prior notice to Customer or without Customer's consent. Upon such assignment, the term "OmegaFi" herein shall thereafter be deemed to mean such assignee. The rights and obligations of the parties hereto shall inure to the benefit of and be binding upon each party’s respective heirs, personal representatives, successors and assigns.
7. United States Use, Export Compliance. OmegaFi is controlled and operated from within the United States. Without limiting anything else, OmegaFi makes no representation that the Services products, information or other materials available in connection with the Services are appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access or use the Services from other locations do so on their own volition and are responsible for compliance with applicable laws. The OmegaFi Services and other products, services and technology OmegaFi makes available and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer agrees not to permit any User to access or use any Service or Content in a U.S. embargoed country or in violation of any U.S. export law or regulation.
8. Independent Relationship. Except as otherwise authorized by this Agreement, in no event shall a party have the right or power (whether express or implied) to make any representation or warranty (express or implied) on behalf of the other party or otherwise to bind the other party in any way whatsoever, and nothing herein is intended to or shall be construed to create a partnership, joint venture, agency (to the extent such a relationship exceeds the agency relationship already created herein) or employment relationship between the parties.
9. Headings. The headings contained in this Agreement are for convenience and reference purposes only, and shall in no manner be construed as part of this Agreement.
10. Third Party Beneficiaries. No person or entity not party to this agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.
FINANCIAL TERMS AND CONDITIONS
Financial Terms Applicability. These Financial Terms and Conditions apply and are incorporated into Customer's Agreement with OmegaFi if Customer has ordered BillPay Pro, Compass, ICS, GRS, LegFi, OmegaOne, OmegaSites, Vault, VaultPayroll, VaultPro, and if any of the Services Customer has ordered involve accepting, making or processing a payment on Customer's behalf or using the Software to accept, make or process a payment on Customer's behalf.
Agency Relationship. Customer hereby authorizes and appoints OmegaFi to serve as Customer's limited agent and to act on Customer's behalf for the limited purposes of performing the Service. Customer acknowledges that OmegaFi’s appointment as Customer's agent may result in OmegaFi collecting or otherwise obtaining access to monies and funds that belong to Customer or otherwise are the property of Customer, which shall include processing personal checks, credit card payments, Automated Clearing House (“ACH”) payments and other payments, as well as making payments on Customer's behalf, as appropriate. To the extent OmegaFi collects money on Customer's behalf, and except as otherwise provided for herein, OmegaFi acknowledges it shall transfer such funds to the appropriate bank account designated by Customer (the “Customer Bank Account”), and OmegaFi retains no title or rights in or to such funds.
Customer Funds. During the term of this Agreement, OmegaFi shall have the authority to place customer funds in one or more accounts with a financial institution chosen at the full and absolute discretion of OmegaFi prior to disbursement of such funds to the Customer Bank Account, and OmegaFi may combine Customer Funds with the funds of other customers and hold such pooled accounts in OmegaFi’s name (the “Pooled Accounts”). Additionally, OmegaFi may make disbursements to and from the Pooled Accounts as it deems necessary and in its sole and absolute discretion to perform the Services and to compensate itself for Services provided. OmegaFi’s possession of such funds shall be solely in an agency capacity, and OmegaFi retains no interest or rights to said funds, except (i) to the extent that any of such accounts earn interest, which shall solely belong to OmegaFi, and (ii) any costs, expenses and fees which are due to OmegaFi for its performance of the Services. Customer acknowledge Customer will not receive any interest on any funds held briefly by OmegaFi, and to the extent Customer would have any right or claim to such interest, Customer hereby irrevocably assigns and transfers to OmegaFi all of Customer's rights to such interest. OmegaFi is not a bank or other chartered depository institution, and funds held by OmegaFi on Customer's behalf are not deposit obligations and are not insured by the Federal Deposit Insurance Corporation or any other governmental agency. Any and all funds in such accounts shall remain the exclusive property of Customer or any other clients of OmegaFi, and such funds shall not be subject to the rights of OmegaFi or any of its assigns, successors-in-interest, creditors, and the like.
Accepting Payments. You acknowledge the process of accepting and processing checks, e-checks, ACH payments, debit/credit card payments and other payments are governed by complex (i) laws, rules and regulations of the United States and other relevant jurisdiction and, (ii) rules and regulations issued by NACHA, the various credit card companies and other entities formed to administer and promote payment processing (collectively the "Payment Processing Regulations"). In order to comply with the Payment Processing Regulations, You agree to abide by OmegaFi's Payment Processing Terms and Conditions, which are made a part of this Agreement and by this reference are incorporated herein, and which may be amended by OmegaFi from time to time.
Chargebacks & Transfer Errors.
1. In the event OmegaFi erroneously or mistakenly transfers or allocates funds to the Customer Bank Account, Customer authorizes OmegaFi to initiate a debit of the Customer Bank Account to withdraw the amount necessary to correct the erroneous transfer. Customer agrees to assist OmegaFi with correcting such erroneous transfers.
2. If OmegaFi receives a payment on Customer's behalf that is subsequently cancelled, invalidated, challenged or disputed, Customer shall be liable to OmegaFi for the full amount of any costs, expenses and fees incurred by virtue of any dispute, invalidation, challenge or reversal of such payment. If the sender of a payment disputes the payment or files for a chargeback, the debit or credit card issuer or the originating bank, and not OmegaFi, shall have the obligation to determine whether the dispute or chargeback is valid and to whom payment is owed. If the appropriate parties determine the sender of a payment is entitled to a chargeback, then to the extent there are sufficient funds belonging to Customer in the Pooled Accounts, Customer authorizes OmegaFi to use such funds in the appropriate amount to satisfy the chargeback and any chargeback processing fees assessed by OmegaFi; however, if there are not sufficient funds in the Pooled Accounts belonging to Customer to cover any reimbursement, Customer authorizes OmegaFi to initiate a debit of the Customer Bank Account and withdraw the amount necessary to satisfy the chargeback and any chargeback processing fees assessed by OmegaFi. If there are insufficient funds in the Customer Bank Account to cover Customer's liability, Customer agrees to reimburse OmegaFi for any out-of-pocket expenses which may be incurred by OmegaFi to satisfy the chargeback. If OmegaFi is unable to recover such funds from Customer, OmegaFi shall be authorized to pursue any remedy entitled to it, including initiating a legal proceeding.
Payment Processing Fees
1. Credit Card Processing Fees. Unless otherwise provided for in an Order Form, Customer agrees to pay to OmegaFi a credit card processing fee ("Merchant Discount Fee" or "MDF") at the current MDF rates then in effect at OmegaFi for any payment made to Customer by credit card. The Merchant Discount Fee is subject to change. OmegaFi will provide at least 60 days' notice before the Merchant Discount Fee changes.
2. ACH / E-Check Processing Fees. Unless otherwise provided for in an Order Form, Customer agrees to pay to OmegaFi an e-check /ACH processing fee ("E-Check Fee") at the current E-Check Fee rate then in effect at OmegaFi for any payment made to Customer by ACH or e-check. The E-Check Fee is subject to change. OmegaFi will provide at least 60 days' notice before the E-Check Fee changes.
3. Check Processing Fees. Unless prohibited by law or otherwise provided for in an Order Form, Customer acknowledges that individuals who make a payment to Customer with a check that is handled by OmegaFi will incur a check processing fee at the current check processing fee rates then in effect at OmegaFi. You agree to pay any check processing fees not paid by Your Members.
4. Additional Payment-Related Fees. In addition, Customer agrees to pay the following fees for any payment-related item requested by Customer:
  1. Unique Financial Transactions
    1. Wire Transfer: $75.00
    2. Chargeback: $50.00
    3. Bounced Check: $15.00
  2. Vault & BillPay Pro Unique Fees
    1. Bill Pay Deposit Return: $15.00
    2. Stop Payment: $22.00
    3. First Swipe device: $30.00 annually
    4. Additional / replacement Swipe device: $30.00
    5. Statement insert fee: $0.05 per insert
    6. Collection agency fees: 33.33% of payment
    7. BillPay checks – 500 checks: $45.00
    8. BillPay checks – 1,000 checks: $60.00
    9. Officer Purchasing Card – annual fee: $120.00
    10. Officer Purchasing Card – replacement card fee: $25.00
    11. Officer Purchasing Card – expedited card fee: $40.00
    12. Vault contract fee: $3.00 per contract
  3. GRS Unique Fees
    1. Special / expedited processing fee: $25.00 per item
  4. Vault Payroll Unique Fees
    1. Payroll garnishment services: $5.00 per pay period
    2. Payroll overnight mail delivery: $12.00
    3. Payroll state mandated workman’s compensation: $10.00 per month
Bill Pay and Payment Instructions.
1. Bill Pay. In connection with the Services associated with BillPay Pro, GRS, Vault and VaultPro, Customer may use OmegaFi's software to make payments directly from a fund or bank account consisting entirely of money belonging to Customer (the “Bill Pay Fund”).
2. Payment Instructions.
  1. Customer authorizes OmegaFi to follow the payment instructions OmegaFi receives from Customer. In addition, OmegaFi shall only be required to honor payment instructions if Customer is then in compliance with the terms of this Agreement. OmegaFi shall be under no obligation to honor any payment instruction that: (i) exceeds the balance in Customer's Bill Pay Fund; (ii) is to a purported Vendor for which OmegaFi has not received notification that any bill may be due; (iii) would, in the reasonable discretion of OmegaFi, violate any provision of this Agreement or any applicable law or regulations; or (iv) involves any funds which are subject to a dispute, hold or any other proceeding which would prevent or otherwise result in an unauthorized withdrawal of funds.
  2. To the extent any late fees are charged by any vendor, and such fees are the result of Customer's failure to timely provide instructions to OmegaFi, such late fees shall be Customer's obligation and OmegaFi shall bear no responsibility or liability therefor. If OmegaFi receives inaccurate instructions, Customer agrees to indemnify and forever hold OmegaFi harmless from any and all losses, damages, costs and expenses resulting from any actions taken pursuant to such inaccurate instructions, and OmegaFi shall bear no responsibility or liability related thereto, except to the extent that OmegaFi had actual knowledge of such inaccuracy and still processed and acted pursuant to such instructions. Customer agrees that OmegaFi has no obligation to research or resolve any claim resulting from a prohibited payment.
  3. CUSTOMER ASSUMES THE ENTIRE RISK FOR THE FRAUDULENT, UNAUTHORIZED OR OTHERWISE IMPROPER USE OF PAYMENT INSTRUCTIONS BY CUSTOMER AND BY SOMEONE PURPORTING TO BE CUSTOMER OR A RESPONSIBLE PERSON. OMEGAFI SHALL BE ENTITLED TO RELY ON THE GENUINENESS AND VALIDITY OF ALL INSTRUCTIONS RECEIVED FROM CUSTOMER AND SHALL BE ENTITLED TO ACT PURSUANT TO SUCH INSTRUCTIONS. CUSTOMER ACKNOWLEDGES THAT ITS PAYMENT INSTRUCTIONS COMPLY WITH US LAW, INCLUDING, WITHOUT LIMITATION, ANTI-MONEY LAUNDERING LAWS AND REGULATIONS ISSED BY THE OFFICE OF FOREIGN ASSET CONTROL.
  4. Funding. Upon the creation of a Bill Pay Fund, it shall be Customer's responsibility to initially fund the Bill Pay Fund in a sufficient amount to satisfy the payments Customer intends to make through the Bill Pay Fund. In the event of an ACH transfer into the Bill Pay Fund, OmegaFi is authorized to initiate the transfer with Customer's financial institution in the amount so designated by Customer, and Customer agrees to pay any ACH transfer or wire transfer fees that may be associated with funding its Bill Pay Fund. Additionally, if the Bill Pay Fund, at any time, does not maintain a sufficient balance to pay Vendors pursuant to the Services, OmegaFi shall have no obligation or responsibility to perform the Services related thereto. However, in its sole and absolute discretion, OmegaFi may apply any funds in the Pooled Accounts which are the property of Customer to the Bill Pay Fund in order to maintain a sufficient balance to perform its obligations hereunder.
3. Accepting Payments. Customer acknowledges the recipient of any such funds shall not be required to accept any payments made by Customer from a Bill Pay Fund, and OmegaFi shall not be held liable or responsible for any damages resulting from a recipient’s decision to not accept any payments made by Customer using OmegaFi's software. Any unclaimed/refunded/denied payments shall be returned to Customer.
4. Stop Payments. OmegaFi reserves the right to return after 90 days any payment made on Customer's behalf that is not processed by the vendor for any reason. OmegaFi may issue a stop payment order on any check that has not been deposited and cleared after 90 days of issuance. Customer agrees to pay OmegaFi any stop payment fees for each stop payment order issued. Customer agrees that it is Customer's responsibility to determine when funds are considered abandoned and what subsequent action is required. OmegaFi does not escheat funds on Customer's behalf.
5. Tax Forms. Unless OmegaFi specifically agrees in writing to perform this service, OmegaFi is not required to determine, calculate or collect backup withholding tax from Customer's vendor(s). Customer is responsible for obtaining and maintaining any tax forms including the IRS Form W-9 – Request for Taxpayer Identification Number and Certification.
Taxes. Customer is responsible to determine what, if any, taxes apply to the payments made or funds collected by OmegaFi on Customer's behalf. It is Customer's responsibility to collect, report, and remit the correct taxes to the appropriate taxing authority and to pay all taxes associated with its consumption of the Services. OmegaFi maintains no responsibility with respect to the reporting or remittance of any taxes owed by Customer which arise out of the Services.

PROFESSIONAL SERVICES TERMS AND CONDITIONS
Professional Services Applicability. These Professional Services Terms and Conditions are incorporated into Customer's Agreement with OmegaFi, if the Order Form indicates Professional Services have been selected by Customer.
Statements of Work. Both parties shall execute a Statement of Work ("SOW"), which shall be deemed incorporated into this Agreement, that describes the scope of work both parties agree to perform. If there is a conflict between the terms set forth in this Agreement and a Statement of Work, the terms set forth in the applicable Statement of Work will control.
Tasks and Service Deliverables. OmegaFi shall perform the Professional Services with reasonable skill and care and provide the Service Deliverables described in the applicable SOW and any Change Order Form (as defined below). OmegaFi shall use reasonable efforts to meet dates specified in a SOW for the delivery of Professional Services and Service Deliverables. OmegaFi shall use commercially reasonable efforts to schedule resources upon request from Customer. Customer understands that OmegaFi's Professional Services may include the provision of advice and recommendations, but adoption of any recommendations are the responsibility of the Customer. OmegaFi shall be responsible for project management of OmegaFi's resources and commitments. Time and schedule estimates are based on OmegaFi's experience with other similar change or services requests in the past, and the information available at the time of preparing the estimate. OmegaFi shall use reasonable efforts to adhere to any estimate provided. However, actual effort may vary and OmegaFi shall keep Customer notified of effort incurred and planned and progress throughout. OmegaFi agrees to advise Customer in writing at the earliest possible time when postponing or cancelling scheduled activity. In such instances, no liability shall arise, Customer will pay all fees and expenses associated with Professional services and Service Deliverables provided, and OmegaFi and Customer shall collaborate with reasonable commercial diligence to resume or reschedule the cancelled activity.
Service Deliverables License Grant. All Service Deliverables developed by OmegaFi pursuant to a SOW shall be the property of OmegaFi provided, however, that Customer is hereby granted a non-exclusive and non-transferable license to use the Service Deliverables solely for its internal business purposes, subject to the restrictions set out in this Agreement and the applicable SOW.
Customer Obligation. Customer agrees to deploy appropriately skilled and qualified personnel in the performance of its obligations under all SOWs, and shall provide information, decisions and approvals in a timely manner to facilitate the agreed-upon delivery schedule. Customer agrees to make available to OmegaFi access to all environments as required under a SOW, or as otherwise agreed between the Parties. OmegaFi and Customer agree to work together in good faith to mitigate any delay (i) in completion or delivery, or (ii) in the provision of the Professional Services resulting, in the reasonable opinion of OmegaFi, from Customer's failure to perform its obligations as described in the applicable SOW.
Payment Terms. Unless otherwise stated in the SOW, OmegaFi will invoice Customer for the fees on a time and materials basis at the billing rates set forth in the SOW. If OmegaFi charges travel time or travel expenses, the rate and conditions shall be agreed upon in advance by OmegaFi and Customer in the SOW. Customer shall pay OmegaFi the fees within thirty (30) days from the date of invoice.
Customization Services. In this Agreement and any SOW, "Customization Services" means any Professional Services which involve modifications by OmegaFi to the source code of any Software in order to customize certain aspects of such Software for the Customer pursuant to the terms of a SOW.
1. Where Service Deliverables are provided as a result of Customization Services, then unless otherwise specified in the SOW, the following shall apply.
  1. Following receipt of each Service Deliverable, Customer will have thirty (30) days to perform acceptance testing of that particular Service Deliverable.
  2. If the particular Service Deliverable does not embody the mutually agreed characteristics set forth in the applicable SOW, Customer may reject such Service Deliverable by providing OmegaFi written notice rejecting the particular Service Deliverable, and the reasons therefore, within the thirty (30) day testing period. If Customer does not give OmegaFi written notice rejecting the particular Service Deliverable within the thirty (30) day testing period, such Service Deliverable shall conclusively be deemed accepted.
  3. If Customer provides OmegaFi written notice rejecting the particular Service Deliverable within the thirty (30) day testing period, then after receipt of Customer's notice, OmegaFi will make any reasonable corrections or changes and resubmit the Service Deliverable to Customer for further acceptance testing.
  4. Upon Customer's receipt of the revised Service Deliverable, the procedures outlined in subparagraphs a. i), a. ii) and a. iii) above will be repeated until the Service Deliverable is accepted. The section below defines the severity levels which shall be allocated to any issues raised related to the Service Deliverables. The severity of the issue will be reviewed and finally determined by OmegaFi and in some cases the Customer may be asked to provide a brief description of the impact and rationale for "urgent" and "critical" severity levels. The severity level may change during the life of an issue. For instance, severity may be reduced with a viable workaround or the inability to recreate the problem. Severity may also be upgraded based on increased frequency of the issue or project deadlines. An acceptance shall occur if there are no open items with a severity level of "critical" or "urgent"
2. Severity Definition
  1. "Critical" means the entire system or functional component is inoperable and cannot be used until the error is resolved.
  2. "Urgent" means a serious error in a business critical function where no viable workaround is available.
  3. "Standard" means an error that does not stop the user progressing or a viable workaround is possible.
  4. "Low" means an error that causes no loss of functionality, or which may be considered cosmetic or annoying in nature.
  5. "Enhancement" means a feature is operating to the agreed specifications/requirements, however, its method of operation may be altered in order to deliver more business benefit.
3. Customer will cooperate with OmegaFi to isolate, identify and resolve any problems in the Service Deliverables.
4. Customer understands and agrees that OmegaFi makes no representations or warranties that the Service Deliverables provided as a result of Customization Services will be compatible with all future releases of the Software. Customer may be required to purchase additional Professional Services hours at an agreed to price to resolve any compatibility issues.
Change Procedure. Project costs and durations set forth in a SOW are based on the scope, requirements and assumptions as defined in such SOW. Variance in the scope, requirements or assumptions will have an impact on the project's time and cost. OmegaFi utilizes a formal change control procedure to respond to and manage the changes that may occur throughout the duration of a project. The purpose of this procedure is not to inhibit or prevent change, but rather to facilitate change in an orderly manner. OmegaFi's change control procedure is summarized below.
1. Either Customer or OmegaFi may initiate a change order
2. Customer will work with OmegaFi to document all requested changes in OmegaFi's standard change request form “Change Order Form”. This documentation will include a description of the change, reason for the change, areas affected, estimated hours, costs and completion date. OmegaFi will then submit each Change Order Form to Customer for review and approval before any work is started on the change. OmegaFi will, likewise, review and approve the changes before any work is started.
3. In the event that the Parties disagree about the proposed changes, each Party shall, within two business days from the report of the issue, identify a senior management officer who has decision making authority for each of the respective Parties. The senior management officers will discuss and arrive at a mutually acceptable decision. The results of the meeting will be documented and any milestone dates and costs will be adjusted in the Change Order Form accordingly.