Terms of ServiceEffective Date: 20 June 2017
This HEY OLIVER Subscription Terms of Service ("Agreement") is entered into by and between the HEY OLIVER LTD entity set forth below ("HEY OLIVER" or "we" or "us") and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from HEY OLIVER pursuant to any HEY OLIVER ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
As used in this Agreement, "HEY OLIVER" means HEY OLIVER LTD, a Cypriot company with offices at 8, Michail Karaoli, Anemomylos Building, 1095, Nicosia, Cyprus.
Modifications to this Agreement: From time to time, HEY OLIVER may modify this Agreement. Unless otherwise specified by HEY OLIVER, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below) or entry into a new Order Form. HEY OLIVER will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If HEY OLIVER specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
"Affiliate" means any entity under the control of Customer where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.
"Contractor" means an independent contractor or consultant who is not a competitor of HEY OLIVER.
"Customer Data" means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from Third Party Platforms) and (b) data provided by or about People (including chat and message logs) that are collected from the Customer Properties using the Services.
"Customer Properties" means Customer's websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services to communicate with People.
"Dashboard" means HEY OLIVER's user interface for accessing and administering the Services that Customer may access via the web or the HEY OLIVER Apps.
"Documentation" means the technical user documentation provided with the Services.
"Feedback" means comments, questions, suggestions or other feedback relating to any HEY OLIVER product or service.
"HEY OLIVER App" means any mobile application or desktop client software included in the applicable Service that is made available by HEY OLIVER.
"Laws" means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
"People" (in the singular, "Person") means Customer's end user customers, potential customers, and other users of and visitors to the Customer Properties.
"Permitted User" means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
"Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"); or (iii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in EU Data Protection Directive 95/46/EC or any successor directive or regulation).
"Services" means HEY OLIVER's proprietary software-as-a-service solution(s), including the Dashboard, HEY OLIVER application programming interfaces (APIs), HEY OLIVER Code and HEY OLIVER Apps, as described in the applicable Order Form.
"Taxes" means any sales, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of HEY OLIVER.
"Third-Party Platform" means any software, software-as-a-service, data sources or other products or services not provided by HEY OLIVER that are integrated with Services as described in the Documentation.
2. HEY OLIVER Services
2.1. Services Overview. HEY OLIVER's Services are a suite of marketing software-as-a-service solutions offered through a single platform. The Services are designed to enable Customer to manage communications and interactions with People through the entire lifecycle of their relationship with Customer and to provide a Dashboard for accessing and managing Customer Data regarding those People. Customer may import and export Customer Data between the Services and certain Third-Party Platforms through supported integrations. The Services also include HEY OLIVER Code deployed on Customer Properties to enable all functionalities.
2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a "Subscription Term"). HEY OLIVER may also offer Professional Services (as defined in Section 12) related to certain Services. Customer will purchase and HEY OLIVER will provide the specific Services and related Professional Services (if any) as specified in the applicable Order Form.
2.3. Access to Services. Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including without limitation the number of People tracked). Use of and access to the Services is permitted only by Permitted Users. If Customer is given usernames or passwords to access the Services on HEY OLIVER's systems, Customer will require that all Permitted Users keep the above information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will immediately delete such user ID and otherwise terminate such Permitted User's access to the Service. The right to use the Services includes the right to deploy HEY OLIVER Code on Customer Properties in order to enable interactions, chat and similar functionality and to collect Customer Data for use with the Services as further described below.
2.4. HEY OLIVER Apps. To the extent HEY OLIVER provides HEY OLIVER Apps for use with the Services, subject to all of the terms and conditions of this Agreement, HEY OLIVER grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the HEY OLIVER Apps internally, but only in connection with Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5. Deployment of HEY OLIVER Code. Subject to all of the terms and conditions of this Agreement, HEY OLIVER grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to copy the HEY OLIVER Code in the form provided by HEY OLIVER on Customer Properties solely to support Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement. Customer must implement HEY OLIVER Code on the Customer Properties in order to enable features of the Services. Customer will implement all HEY OLIVER Code in strict accordance with the Documentation and other instructions provided by HEY OLIVER. Customer acknowledges that any changes made to the Customer Properties after initial implementation of HEY OLIVER Code may cause the Services to cease working or function improperly and that HEY OLIVER will have no responsibility for the impact of any such Customer changes.
2.6. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.7. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to HEY OLIVER); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the "by HEY OLIVER" designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.8. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Service (a "Trial Subscription"), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of thirteen (30) days or such other period granted by HEY OLIVER (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period. HEY OLIVER has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, HEY OLIVER WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
3. Customer Data
3.1. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to HEY OLIVER. Subject to the terms of this Agreement, Customer hereby grants to HEY OLIVER a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.2. Storage of Customer Data. HEY OLIVER does not provide an archiving service. HEY OLIVER agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer's applicable Subscription Term. HEY OLIVER expressly disclaims all other obligations with respect to storage.
3.3. Customer Obligations.
- a) In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to HEY OLIVER that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting HEY OLIVER the rights in Section 3.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Data complies with the AUP. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.
- b) No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that HEY OLIVER is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. HEY OLIVER will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
- c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate any other anti-spam laws and regulations.
- e) Restrictions. Customer agrees not to use any Social Media Data obtained via the Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, sending electronic communications (including email) in violation of applicable Law, or any other activity or purpose that may be identified as prohibited by HEY OLIVER from time to time.
- g. Indemnification by Customer. Customer will indemnify, defend and hold harmless HEY OLIVER from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of HEY OLIVER at Customer's expense. Notwithstanding the foregoing sentence, (a) HEY OLIVER may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without HEY OLIVER's prior written consent, unless the settlement fully and unconditionally releases HEY OLIVER and does not require HEY OLIVER to pay any amount, take any action, or admit any liability.
3.5. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that HEY OLIVER may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and HEY OLIVER may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other HEY OLIVER customers. For clarity, this Section 3.5 does not give HEY OLIVER the right to identify Customer as the source of any Aggregated Anonymous Data.
HEY OLIVER agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, HEY OLIVER will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond HEY OLIVER's control.
5. Third-Party Platforms
The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes HEY OLIVER to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that HEY OLIVER has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. HEY OLIVER does not guarantee that the Services will maintain integrations with any Third-Party Platform and HEY OLIVER may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
6.1. HEY OLIVER Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that HEY OLIVER or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "HEY OLIVER Technology"). Except as expressly set forth in this Agreement, no rights in any HEY OLIVER Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for HEY OLIVER Code and the HEY OLIVER Apps in the format provided by HEY OLIVER.
6.2. Feedback. Customer, from time to time, may submit Feedback to HEY OLIVER. HEY OLIVER may freely use or exploit Feedback in connection with any of its products or services.
7. Subscription Term, Fees & Payment
7.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional one-month period unless either party gives the other written notice of termination at least seven (7) days prior to expiration of the then-current Subscription Term.
7.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer within fourteen (14) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 (Limited Warranty) and Section 14 (Indemnification), all fees are non-refundable. The rates in the Order Form are valid for the initial one (1) month period of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, HEY OLIVER receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card. If you are purchasing the Services via credit card, debit card or other payment card ("Credit Card"), the following terms apply:
1. Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorizes HEY OLIVER (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's use of the Services and may include subscription fees for the remainder of Customer's applicable billing period and overage fees for the prior month.
2. Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer's Credit Card may charge a foreign transaction fee or other charges.
3. Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to HEY OLIVER and HEY OLIVER may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
4. Changing Credit Card Information. At any time, Customer may change its Credit Card information by entering updated Credit Card information via the "Settings" page on the Dashboard.
5. Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription Term by sending HEY OLIVER notice of non-renewal to in accordance with Section 7.1 (Subscription Term and Renewals) or, if Customer's Subscription Term is on a monthly basis (or if otherwise permitted by HEY OLIVER), by terminating via the "Settings" page on the Dashboard, with termination effective at the end of the current Subscription Term. As set forth in Section 2.9 (Trial Subscriptions), if Customer does not enter into a paid Subscription Term following a Trial Period, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period and Customer's Credit Card will not be charged.
6. Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, HEY OLIVER will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Term, after which HEY OLIVER will not charge Customer's Credit Card for any additional fees.
7.4. Suspension of Service. If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), HEY OLIVER reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. HEY OLIVER also reserves the right to suspend Customer's access to the Services without liability to Customer if Customer's use of the Services is in violation of the Acceptable Use Policy.
8. Term and Termination
8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related HEY OLIVER Technology) and delete (or, at HEY OLIVER's request, return) any and all copies of the Documentation, any HEY OLIVER passwords or access codes and any other HEY OLIVER Confidential Information in its possession. Provided this Agreement was not terminated for Customer's breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service, and that HEY OLIVER may delete any such data as may have been stored by HEY OLIVER at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.4 (Indemnification by Customer), 3.5 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 13 (Limitation of Remedies and Damages), 14 (Indemnification), 15 (Confidential Information) and 17 (General Terms).
9. Limited Warranty
9.1. Limited Warranty. HEY OLIVER warrants, for Customer's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. HEY OLIVER's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for HEY OLIVER to use commercially reasonable efforts to correct the reported non-conformity, or if HEY OLIVER determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
9.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL Services and PROFESSIONAL SERVICES ARE PROVIDED "AS IS". NEITHER HEY OLIVER NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. HEY OLIVER does not warrant that Customer's use of THE ServiceS will be uninterrupted or error-free, nor does HEY OLIVER warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss OR CORRUPTION. HEY OLIVER SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. HEY OLIVER SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF HEY OLIVER. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. Availability of Service1. HEY OLIVER will use commercially reasonable efforts to make each Service available with an uptime of 99.7% of each calendar month ("Target Availability"). 2. The calculation of uptime will not include unavailability to the extent due to: (a) use of the Service by Customer in a manner not authorized in this Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of Intercom's reasonable control; (c) Customer's equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) Scheduled Maintenance or reasonable emergency maintenance. 3. "Scheduled Maintenance" means HEY OLIVER’s scheduled routine maintenance of the Services for which HEY OLIVER notifies Customer at least twenty-four (24) hours in advance. Scheduled Maintenance will not exceed four (4) hours per month. 4. If there is a verified failure of a Service to meet Target Availability in two (2) consecutive months, then Customer may terminate the applicable Subscription Term by sending written notice of termination within thirty (30) days after the end of the second such month, in which case HEY OLIVER will refund to Customer any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. This termination and refund right is Customer's sole and exclusive remedy.
During the Subscription Term of each Service, HEY OLIVER will provide end user support in in accordance with the following terms:
A. Customer may report errors or abnormal behavior of the Service (" Incidents") by contacting HEY OLIVER via email at . Customer will provide information and cooperation to Intercom as reasonably required for HEY OLIVER to provide Support. This includes, without limitation, providing the following information to Intercom regarding the Incident:
- Aspects of the Service that are unavailable or not functioning correctly
- Incident's impact on users
- Start time of Incident
- List of steps to reproduce Incident
- Relevant log files or data
- Wording of any error message
B. HEY OLIVER will have no obligation to provide Support to the extent an Incident arises from: (a) use of the Service by Customer in a manner not authorized in the Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of Intercom's reasonable control; (c) Customer's equipment, software, network connections or other infrastructure; or (d) third party systems, acts or omissions.
12. Professional Services
HEY OLIVER will provide the professional consulting services ("Professional Services") purchased in the applicable Order Form. The scope of Professional Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information ("SOW"). Unless Professional Services are provided on a fixed-fee basis, Customer will pay HEY OLIVER at the per-hour rates set forth in the Order Form (or, if not specified, at HEY OLIVER's then-standard rates) for any excess services. Customer will reimburse HEY OLIVER for reasonable travel and lodging expenses as incurred. Customer may use anything delivered as part of the Professional Services in support of authorized use of the Services and subject to the terms regarding Customer's rights to use the Service set forth in Section 2 (HEY OLIVER Services) and the applicable SOW, but HEY OLIVER will retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by HEY OLIVER (or its agents).
13. Limitation of Remedies and Damages
13.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
13.2. Liability Cap. HEY OLIVER'S AND ITS SUPPLIERS' ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO HEY OLIVER DURING THE PRIOR 3 (3) MONTHS UNDER THIS AGREEMENT.
13.3. Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer's breach of Section 2.7 (General Restrictions); (b) under Section 3.3 (Customer Obligations) or 3.4 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 15 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service).
13.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 13 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
HEY OLIVER will defend Customer from and against any claim by a third party alleging that a Service when used as authorized under this Agreement infringes a patent, copyright, or trademark and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by HEY OLIVER (including reasonable attorneys' fees) resulting from such claim, provided that HEY OLIVER will have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for HEY OLIVER to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer's use of a Service is (or in HEY OLIVER's opinion is likely to be) enjoined, if required by settlement or if HEY OLIVER determines such actions are reasonably necessary to avoid material liability, HEY OLIVER may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using such Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by HEY OLIVER. The foregoing indemnification obligation of HEY OLIVER will not apply: (1) if such Service is modified by any party other than HEY OLIVER, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by HEY OLIVER, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without HEY OLIVER's prior written consent. THIS SECTION 14 SETS FORTH HEY OLIVER's AND ITS SUPPLIERS' SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
15. Confidential Information
Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any HEY OLIVER Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of HEY OLIVER without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for HEY OLIVER, the subcontractors referenced in Section 17.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 15 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 15. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
At the request of HEY OLIVER, Customer agrees to the issuance of a joint press release ("Press Release") on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer's name and logo on HEY OLIVER's web site and in HEY OLIVER promotional materials. Customer agrees that HEY OLIVER may disclose Customer as a customer of HEY OLIVER.
17. General Terms
17.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 17.1 will be null and void.
17.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
17.3. Governing Law; Dispute Resolution.
- a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute," specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to HEY OLIVER it must be emailed to and sent via mail to:
Attn: Legal Department
8, Michail Karaoli,
Anemomylos Building, 1095,
Nicosia, Cyprus Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration as set forth below.
- b) Arbitration. IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE PARTIES AGREE TO SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A TRIAL. The arbitrator will issue a ruling in writing. Any issue concerning the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of this agreement shall be resolved by the arbitrator.
All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrators may disclose the content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. The result of the arbitration shall be binding on the parties and judgment on the arbitrator's award may be entered in any court having jurisdiction. The arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.
- c) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND HEY OLIVER AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
- d) Injunctive Relief. Notwithstanding the above provisions, HEY OLIVER may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
17.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
17.5. Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
17.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience HEY OLIVER may make changes to the Services, and HEY OLIVER will update the applicable Documentation accordingly. The terms may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease HEY OLIVER's obligations as compared to those reflected in such terms as of the Effective Date).
17.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
17.8. Subcontractors. HEY OLIVER may use the services of subcontractors and permit them to exercise the rights granted to HEY OLIVER in order to provide the Services under this Agreement, provided that HEY OLIVER remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
17.9. Subpoenas. Nothing in this Agreement prevents HEY OLIVER from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but HEY OLIVER will use commercially reasonable efforts to notify Customer where permitted to do so.
17.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
17.11. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement. All Services were developed fully at private expense. All other use is prohibited.
17.12. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.