Olive TERMS AND CONDITIONS
Last updated: December 5, 2023
This Olive software-as-a-service Terms of Service (together with any Order Forms, attachments, exhibits, and/or addendums hereto, as amended from time to time, collectively the “Agreement”) form an agreement between the customer accessing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Olive SaaS Services (as defined below) (such customer, the “Customer”) and Olive Technologies Inc. (“Olive”), the supplier of the Olive SaaS Services, and is entered into on the earlier of the date Customer first uses any part of the Olive SaaS Services and the date Customer agrees to be bound by this Agreement (the “Effective Date”). Each of Olive and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.
This Agreement sets forth the terms and conditions that govern the provision and use of the Services.
BY USING THE OLIVE SAAS SERVICES (INCLUDING THE WEBSITE), EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR CLICKING A BOX INDICATING ACCEPTANCE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12(m). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE OLIVE SAAS SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO OLIVE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE OLIVE SAAS SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO OLIVE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF OLIVE TECHNOLOGIES’ SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
THE OLIVE SAAS SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
OLIVE’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE OLIVE SAAS SERVICES, EXCEPT WITH OLIVE’S PRIOR WRITTEN CONSENT.
- Olive SaaS Services
- Provisioning of the Olive SaaS Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Olive will make the Olive SaaS Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement during the Term.
- Free Trial. If Customer registers on the Website or through an authorized affiliate’s website for a free trial, Olive will make certain Olive SaaS Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the Olive SaaS Services; (b) the start date of any purchased Services ordered by Customer; or (c) termination by Olive in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. In the event of any conflict between such additional trial terms and conditions and this Agreement, such additional trial terms and conditions shall govern.
- Restrictions on Use. Customer will not itself, and will not permit others to:
- sub-license, sell, rent, lend, lease or distribute the Olive SaaS Services or any Intellectual Property Rights therein, or otherwise make the Olive SaaS Services available to others other than Permitted Users;
- use the Olive SaaS Services to permit timesharing, service bureau use or commercially exploit the Olive SaaS Services;
- use or access the Olive SaaS Services:
- in violation of any applicable law;
- in a manner that threatens the security or functionality of the Olive SaaS Services; or
- for any purpose or in any manner not expressly permitted in this Agreement;
- use the Services to create, collect, transmit, store, use or process any Customer Data:
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
- that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
- Modify the Olive SaaS Services;
- reverse engineer, decompile or disassemble the Olive SaaS Services;
- remove or obscure any proprietary notices or labels on the Olive SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
- access or use the Olive SaaS Services for the purpose of building a similar or competitive product or service;
- perform any vulnerability, penetration or similar testing of the Olive SaaS Services;
- impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity;
- harvest or otherwise collect information about other Customers or Permitted Users, including email addresses and phone numbers;
- attempt to probe, scan, or test the vulnerability of the Olive SaaS Services, or any associated system or network, or breach security or authentication measures without proper authorization;
- interfere or attempt to interfere with the use of the Website, the Olive Applications or the Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”.
- use the Olive SaaS Services to send unsolicited email, including without limitation promotions or advertisements for products or services;
- forge any TCP/IP packet header or any part of the header information in any email or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Olive SaaS Services ;
- post or transmit any unsolicited advertising, promotional materials, “junk mail”, “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation or any non-resume information such as opinions or notices, commercial or otherwise;
- post any information that the Customer does not have the right to make available under any law or contractual or fiduciary relationship (such as insider information, proprietary and confidential information or information protected under nondisclosure agreements);
- use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on third party websites;
- access content or data not intended for Customer, or log onto a server or account that Customer is not authorized to access; and
- use the Services for any purpose or in any manner not expressly permitted in this Agreement.
- Permitted Purpose. Customer may access and use the Olive SaaS Services solely for Customer’s internal business purposes.
- Suspension of Access; Scheduled Downtime; Modifications. Olive may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
- suspend Customer’s access to or use of the Services or any component thereof:
- if Customer or any Permitted User violates any provision of this Agreement;
- for scheduled maintenance;
- due to a Force Majeure;
- to address any emergency security concerns;
- if required to do so by a regulatory body or as a result of a change in applicable law; or
- for any other reason as provided in this Agreement.
- Modify the Services.
- suspend Customer’s access to or use of the Services or any component thereof:
Customer is required to accept all patches, bug fixes and updates made by or on behalf of Olive to the Olive SaaS Services.
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- Subcontracting. Olive may engage third parties to assist it in providing the Services or any part thereof.
- Third-Party Products. The Olive SaaS Services may contain or require the use of Licensed Third Party Technology or other third party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Olive does not warrant or support Third-Party Products or other third party products, offerings or services, whether or not they are designated by Olive as “certified” or otherwise. Olive cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Olive. Olive is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
- User Accounts
- In order for Customer to access and use the Olive SaaS Services, Olive will issue one account (the “Customer User Account” to Customer for use by Customer and all individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Olive SaaS Services (each, a “Permitted User”).
- The Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Olive SaaS Services in compliance with this Agreement. The Customer will ensure that Permitted Users only use the Olive SaaS Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Olive of any actual or suspected unauthorized use of the Olive SaaS Services. Olive reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
- Ownership; Reservation of Rights and License Grants
- The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Olive, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to a access, collect, use, process, sell, store, disclose, transfer, transmit, copy, Modify and display Customer Data to:
- provide the Services;
- improve and enhance the Services and its other offerings; and
- produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”).
- The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Olive, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to a access, collect, use, process, sell, store, disclose, transfer, transmit, copy, Modify and display Customer Data to:
Olive may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between Olive and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Olive.
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- Olive or its licensors retain all ownership and Intellectual Property Rights in and to:
- the Services, Olive Application, and Website;
- anything developed or delivered by or on behalf of Olive under this Agreement;
- all other Olive’s Confidential Information, including but not limited to, any reports generated from the Olive SaaS Services or any Aggregated Data;
- any Modifications to the foregoing (i), (ii) and (iii)
- Olive or its licensors retain all ownership and Intellectual Property Rights in and to:
(collectively “Olive Property”).
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- Customer grants to Olive and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Olive SaaS Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Olive’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Olive is not obligated to use any Feedback.
- All rights not expressly granted by Olive to Customer under this Agreement are reserved.
- Privacy
Customer understands that Personal Information will be treated in accordance with Olive’s privacy policy located at https://olive.app/privacy/ or such other place as may be updated by Olive’s from time to time (the “Privacy Policy”).
- Fees and Payment
- Fees. Customer will pay to Olive the fees described in an Order Form (“Fees”). Unless otherwise noted on an Order Form Fees are non-cancelable and non-refundable. If Customer’s use of the Olive SaaS Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
- Invoicing. Olive will prepare and send to the Customer, at the then-current contact information on file with Olive, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 days of the invoice date.
- Late Payment. The Customer may not withhold or setoff any amounts due under this Agreement. Olive reserves the right to suspend the Customer’s access to the Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Without limiting Olive other rights, Olive may suspend Customer’s access to or its performance of the Services, if Customer has not paid the applicable Fees within 10 days of the date that such Fees become due.
- Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Olive.
- Suspension. Any suspension of the Services by Olive pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
- Confidential Information
- Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future Customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
- disclose Confidential Information of the Discloser to any person, except to:
- in the case of Customer to its own employee having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writings; or
- in the case of Olive to Olive’s employees, consultants, agents or affiliates, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; to such other recipients as the Discloser may approve in writing; and to its subcontractors or contractors to perform the Services;
- use Confidential Information of the Discloser; or
- alter or remove from any Confidential Information of the Discloser any proprietary legend.
- disclose Confidential Information of the Discloser to any person, except to:
Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
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- Exceptions to Confidentiality. Notwithstanding Section 6(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
- Return of Confidential Information. Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 10(e) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Olive may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
- Warranty and Disclaimer
- Customer Warranty. Customer represents and warrants to and covenants with Olive that:
- the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by and in compliance with applicable laws, including applicable privacy laws, to enable Olive to provide the Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Olive and to or from all applicable third parties;
- the Customer is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country;
- the Customer is not listed on any U.S. Government list of prohibited or restricted parties; and
- Permitted Users are in good standing with Customer.
- GENERAL DISCLAIMER. OLIVE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OLIVE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OLIVE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, OLIVE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
- CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. CUSTOMER WILL NOT HOLD OLIVE OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM CUSTOMER’S ACCESS TO OR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF CUSTOMER’S COMPUTERS OR DATA. THE SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. IMPORTANTLY, CUSTOMER HEREBY ACKNOWLEDGE THAT A CATASTROPHIC SERVER FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO CUSTOMER’S ACCOUNT.
- Olive provides research and information services based on publicly available data, vendor-provided materials, and AI-generated responses. While Olive strives to ensure the accuracy of the information presented, Olive does not guarantee that vendor solutions are represented in their entirety or without error. Vendors are responsible for ensuring that any information they provide or that is publicly available is accurate and up-to-date. Olive disclaims any liability for errors, omissions, or misrepresentations in the information provided through its platform. Users are encouraged to verify any critical information directly with vendors before making purchasing decisions.
- Customer Warranty. Customer represents and warrants to and covenants with Olive that:
- Indemnities
- Olive’s Indemnity.
- Olive will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the Olive SaaS Services infringe any third-party Intellectual Property Right in Canada and US. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any Olive SaaS Services into, or any combination, operation, or use of any Olive SaaS Services with, any products or services not provided or authorized by Olive, unless such infringement would also have resulted solely from the use of the Olive SaaS Services without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any Olive SaaS Services other than by Olive or with Olive’s express written approval; (C) unauthorized use of the Olive SaaS Services; or (D) Customer’s indemnity in Section 8(b). THE FOREGOING IS Olive’s SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
- If the Olive SaaS Services are, or in Olive’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Customer’s use of any Olive SaaS Services is enjoined or threatened to be enjoined, Olive may, at its option and sole cost and expense:
- obtain the right for the Customer to continue to use the affected Olive SaaS Services materially as contemplated by this Agreement;
- modify or replace Olive SaaS Services, in whole or in part, to seek to make the Olive SaaS Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Olive SaaS Services under this Agreement; or
- Olive’s Indemnity.
if Olive determines that neither of the foregoing two options are reasonably available, then this Agreement may be terminated by Olive and Olive’s sole liability.
THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
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- Customer Indemnity. The Customer will defend, indemnify and hold harmless Olive, and its officers, directors, employees and agents (each, a “Olive Indemnitee”) from and against any and all Losses incurred by a Olive Indemnitee arising out of or relating to any Action by a third party (other than an affiliate of a Olive Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Services by the Customer or any Permitted User; (iv) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service; (v) Customer’s violation of applicable laws; or (vi) Customer’s violation or alleged violation of any third party’s Intellectual Property Rights. Customer will fully cooperate with Olive in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Olive.
- Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 8. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action (although the Indemnitor shall not settle any claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 8(c) will not relieve the Indemnitor of its indemnity obligations under this Section 8 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
- Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
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- AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF OLIVE IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED FIFTY DOLLARS. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL OLIVE’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL OLIVE BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
- Term and Termination
- Term. Unless otherwise set out in an applicable quote or Order Form, the term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order Form or, if none, for 1 month. Thereafter, the Term will renew for successive Terms equal to the Term set forth in the order form or quote, unless either party refuses such renewal by written notice 30 or more days before the renewal date (each, a “Renewal Term”). Pricing and service capacity may change for additional terms beyond the Term.
- Termination by Olive. In addition and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Services may be terminated or suspended by Olive at any time at Olive’s sole discretion. Olive may immediately terminate Customer’s right to use the Services or this Agreement: (1) if Olive believes that Customer or any Permitted User has violated this Agreement; (2) if Olive believes the use of Customer Data with the Services is not in Olive’s or its users’ best interests; (3) if Olive ceases to offer the Services; or (4) as required by applicable laws.
- Termination by Customer. Customer may terminate this Agreement for Olive’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the Olive first cures such breach, or effective immediately if the breach is not subject to cure.
- Termination. Notwithstanding any other Section of this Agreement, Olive may, in its discretion, terminate the Agreement or any Order Form at any time by providing at least 30 days advance written notice to Customer. Olive may, in addition to other relief, terminate this Agreement if the Customer commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach. Olive may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
- Effect of Termination. Upon expiration or termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Olive SaaS Services and return any Olive Property in its possession and certify in writing to Olive that the Olive Property has been returned. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. All Fees due and payable and any amounts due to Olive are immediately due and are to be immediately paid by Customer to Olive. All Order Forms will terminate upon the termination of this Agreement. No new Order Forms may be agreed to or entered into by the Parties, upon the termination of this Agreement.
- Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 10(f) (Survival), and Section 11 (General Provisions).
- Support Services
- Olive will offer support in accordance with the following terms:
- Support Hours. Standard technical support regarding the application is provided through business hours in the Pacific timezone, 8 a.m. through 6 p.m.
- Incident Submission and Customer Cooperation. Customer may report errors or abnormal behavior of the Services (“Incidents”) by contacting Olive in the via the intercom messenger, or via email. Customer will provide information and cooperation as reasonably required for Olive to provide Support Services. This includes, without limitation, providing the following information to the Olive team regarding an Incident:
- aspects of the Services that are unavailable or not functioning correctly;
- Incident’s impact on users;
- list of steps to reproduce incident;
- relevant log files or data; and
- wording of any error message.
- Exclusions. Olive will have no obligation to provide the support set out herein to the extent an Incident arises from:
- use of the Services by Customer in a manner not authorized in the Agreement or any applicable documentation provided by Olive to Customer;
- general Internet problems, Force Majeure events or other factors outside of Olive’s reasonable control;
- Customer’s equipment, software, network connections or other infrastructure; or
- or third party systems, acts or omissions.
- Olive will offer support in accordance with the following terms:
- General Provisions
- Notices.
- Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by US or Canadian first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Olive, to the following Olive’s address and email contact:
- Notices.
Address:
Olive Technologies Inc.
Pier 32 – 330-1333 Johnston St.
Vancouver, BC, V6H 3R9
Email:
and (ii) if to Customer, to the current mailing or email address that Olive has on file with respect to Customer. Olive may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Olive current at all times during the Term.
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- DMCA Policy. If Customer has evidence of, knows, or has a good faith belief that its rights or the rights of a third party have been violated and wants Olive to delete, edit, or disable the material in question, Customer must provide Olive with the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Olive to locate the material; (d) information reasonably sufficient to permit Olive to contact Customer, such as an address, telephone number, and if available, an electronic mail address ; (e) a statement that Customer has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that Customer is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, Customer must provide it to Olive’s designated agent at:
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Attn: Copyright Agent
Olive Technologies, Inc.
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- Assignment. Customer may not assign this Agreement to any third party without Olive’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Olive may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
- Governing Law and Attornment.
- This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Olive from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
- Arbitration.
- Customer agrees that any dispute, of any nature whatsoever, between Customer and Olive arising out of or relating to this Agreement, shall be decided by neutral, binding arbitration before a representative of BCICAC in Vancouver, British Columbia (unless Customer and Olive mutually agree to a different arbitrator), who shall render an award in accordance with the substantive laws of British Columbia and BCICAC’s Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the BCICAC’s fee and reasonable attorney’s fees) to the prevailing party.
- This agreement to arbitrate will not preclude Customer or Olive from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude Customer or Olive from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN SEATTLE, WASHINGTON; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
- Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Olive SaaS Services. Olive makes no representation or warranty that the Olive SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
- Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
- Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 5, 6, or 8.
- Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Olive’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
- Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, OLIVE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY OLIVE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
- English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
- Definitions
As used in this Agreement, the following capitalized words have the meaning set out below:
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- “Agreement” has the meaning in the preamble.
- “Aggregated Data” has the meaning in Section 3(a)(iii).
- “Amendment” has the meaning set out in Section 12(m).
- “Confidential Information” has the meaning set out in Section 6(a).
- “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Olive SaaS Services, including but not limited to Personal Information, excluding Aggregated Data and any other Olive Property.
- “Customer User Account” has the meaning set out in Section 2(a).
- “Discloser” has the meaning set out in Section 6(a).
- “Feedback” has the meaning set out in Section 3(c).
- “Fees” has the meaning set out in Section 5(a).
- “Force Majeure” has the meaning set out in Section 12(h).
- “Initial Term” has the meaning set out in Section 10(a).
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
- “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
- “Olive Application” means Olive’s applications and any updates provided as part of the Olive SaaS Services.
- “Olive Property” has the meaning set out in Section 3(b).
- “Olive SaaS Services” or “Services” means: (i) the services through which Olive hosts and makes available the Olive SaaS Services as described in an Order Form; and (ii) any component or Modification of the services referred to in (i). The term “Olive SaaS Services” and “Services” include the Olive Software and Olive Application.
- “Olive Software” means all software used by Olive to provide the Olive SaaS Services, and any updates provided as part of the Olive SaaS Services.
- “Order Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by Customer.
- “Party” has the meaning set out in the preamble.
- “Permitted User” has the meaning set out in Section 2(a).
- “Personal Information” means information about an identifiable individual provided by Customer under this Agreement.
- “Privacy Policy” has the meaning set out in Section 4.
- “Recipient” has the meaning set out in Section 6(a).
- “Renewal Term” has the meaning set out in Section 10(a).
- “Support Services” has the meaning set out in Section 11.
- “Term” has the meaning set out in Section 10(a).
- “Third-Party Products” has the meaning set out in Section 1(g).
- “Website” means any websites used by Olive to provide the Olive SaaS Services, including the websites located at olive.app.