Terms of ServiceEffective Date: 25 May 2018
1. INITIAL PROVISIONS
1.1. The provisions of these General Terms and Conditions shall apply to all Agreements (as defined below) between Hey Oliver Limited, 8, Michael Karaoli Street, 1095, Nicosia, Cyprus, registered in the Department of Registrar of Companies and Official Receiver maintained by the Republic of Cyprus, or other Hey Oliver's Affiliate (if such Hey Oliver's Affiliate is defined in respective Order Form; Hey Oliver or its respective Affiliate shall hereinafter be referred to as ("Hey Oliver") and whoever is using Services provided by Hey Oliver ("Customer").
1.2. The General Terms and Conditions are published on the Hey Oliver website and are available to all Customers.
2.1. In these General Terms and Conditions, unless the context requires otherwise, the words and expressions set out in this clause 2.1 shall have the meaning ascribed to them herein:
Account means the account created and/or authorised for a Customer based on the Order Form in order to utilise the Services;
Affiliate(s) mean(s) any person or entity which, directly or indirectly, is in control of, is controlled by, or is under common control with such entity; for the purpose of this definition, "control" of an entity means the power, directly or indirectly, to either: (a) vote 10% or more of the securities having ordinary voting power for the election of directors of such entity; or (b) direct or cause the direction of the management and policies of such entity whether by contract or otherwise;
Agreement means an Order Form, reseller agreement, cooperation agreement or any other agreement concluded between Hey Oliver and the Customer;
Business Day means a business day on which banks are open both in Cyprus and in the country of registration of the respective Affiliate providing the Services;
Capacity Limitations means maximum Event capacity as stipulated in an Order Form; in the absence of a specific agreement in an Order Form, a limitation of 100 million Events shall apply;
Confidential Information means technical and non-technical information including patents, copyright, trade secrets, proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software, source documents, and formulas related to the current, future and proposed products and services, research, experimental work, development, design details and specifications, engineering, and information marked "confidential" or "proprietary" or which the recipient knows or has reason to know that the information shall be deemed confidential; for the avoidance of doubt, this term does not include any information that the receiving party may demonstrate by its written records: (a) was known to it prior to its disclosure by the disclosing party; (b)is or has become known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorised to make such disclosure; (d) has been independently developed by the receiving party; (e) has been approved for release with the written authorisation of the disclosing party; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt notice to enable the other party to seek a protective order or otherwise prevent such disclosure;
Subscription Services mean software as a service with the agreed modules as set out in the respective Order Form to be provided to the Customer on the basis of the Agreement;
Customer Data means the data of the clients of the Customer (and the respective Customer's data, where relevant) to be provided by the Customer to Hey Oliver for the purpose of the provision of the Services;
Effective Date means the date specified in the respective Agreement as the date from which the Services are provided to the Customer; in the absence of such date, the Services are provided from conclusion of the Agreement;
Event means any user interaction with content processed, tracked or generated in connection with the Services, including but not limited to e-mail or SMS notifications, page views, transactions or data input;
Fees means the Subscription Fees and any other types of fees that may be agreed in an Order Form;
General Terms and Conditions mean these General Terms and Conditions- Hey Oliver Platform which are also available on the relevant Hey Oliver's website;
General Terms and Conditions Effective Date means the date specified in the heading of this General Terms and Conditions;
Guides means user guides, cookbook, technical documentation and FAQs designed for some or all of the Services as may be provided to the Customer and/or published by Hey Oliver on https://guides.Hey Oliver.com;
Legislation means all generally binding legal regulations of the Republic of Cyprus, the country of registration of the respective Hey Oliver's Affiliate, the European Union, provided that such regulation directly and/or indirectly applies to the Parties' legal relationships, the Products and/or trading with the Parties;
Order Form means an agreement concluded between the Customer and Hey Oliver based on the form which may be available on https://Hey Oliver.com/ or otherwise agreed by Hey Oliver and the Customer for the usage of a Service via a mutually agreed order stipulating the specifications of the Service to be provided, all applicable limitations and Fees; by concluding an Order Form, Hey Oliver and the Customer undertake to be bound by these General Terms and Conditions, i.e. to enter into the Agreement;
Parties jointly refers to Hey Oliver and the Customer;
Service(s) means service(s) provided based on any and all software products developed as a result of the activities of Hey Oliver and as published and provided by Hey Oliver;
Subscription Fee(s) mean(s) fees for the usage of the Subscription Services as agreed and based on an Order Form;
Territory means the territory of the European Economic Area, unless otherwise agreed in an Order Form;
Term means the Term of the Agreement, as may be extended or shortened under the respective provisions set out in clause 11 of these General Terms and Conditions;
Usage Limitations mean any limitations that Services are or may be subject to, including, but not limited to, the number of users, contacts, e-mails/SMS, IP addresses, scenarios, imports or any other limitations pursuant to the respective Order Form or Guide.
3. SERVICES, AVAILABILITY AND SUPPORT
3.1. Subject to these General Terms and Conditions and in accordance with any Capacity Limitations and/or Usage Limitations, Hey Oliver shall make the Subscription Services with the modules delimited in the Order Form available to the Customer and provide the Customer (in addition to the Subscription Services) with other Services as stipulated in an Order Form. The Customer shall pay Hey Oliver the Fees set forth in the Order Form in line with the payment terms set out in clause 4 of these General Terms and Conditions.
3.2. Account. As part of the registration process, the Customer shall identify an administrative user name and password for the Customer's Account with Hey Oliver.
3.3. Trial version. A free trial version of the Services may be available for any Customers for limited use. A trial version starts upon the respective authorisation of Hey Oliver. Prior to using Services in trial version mode, the Customer needs to sign up for an Account. The trial version lasts for 14 (fourteen) days. During the 14 (fourteen) day trial version, only limited Services shall be provided for the sole purpose of testing the Services offered by Hey Oliver. After the lapse of the 14 (fourteen) day trial version, the Customer and Hey Oliver shall (a) enter into an Order Form; or (b) the Customer shall cease to use its Account and Services for any purpose. From the moment of the conclusion of the respective Order Form, the Customer's Account will be authorised and these General Terms and Conditions shall apply. For the avoidance of doubt, these General Terms and Conditions shall similarly apply to Customers using the trial version, in particular, but not limited to, those clauses that are aimed at protecting Hey Oliver's intellectual property and restricting use.
3.4. Availability. Hey Oliver shall provide the Customer with the Subscription Services within the Territory. The Services shall be made available by Hey Oliver subject to any unavailability caused by circumstances beyond Hey Oliver's reasonable control, including any force majeure events, any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within Hey Oliver's possession or reasonable control, or denial of service attacks. The Subscription Services may be temporarily limited or interrupted due to maintenance, repair, modifications, upgrades or relocation. Hey Oliver shall undertake reasonable endeavours to notify the Customer of scheduled and unscheduled network outages that are expected to last for more than four (4) hours and that may affect the Services.
3.5. Equipment. The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including but not limited to modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). The Customer shall also be responsible for maintaining the security of the Equipment, Customer Account, passwords (including but not limited to administrative and user passwords) and files, and for all use of the Customer Account or the Equipment.
3.7. Subcontractors. Hey Oliver may also use the subcontractors to provide certain parts of the Services, if ordered by the Customer. Certain Services may be subject to additional terms, for instance:
(a) Mailing. This clause 3.6 (a) applies only if specifically agreed between Hey Oliver and the Customer that Hey Oliver will provide mailing services. The Customer shall be solely responsible for the content of e-mail messages sent as part of the Services. The Parties agree that in any such will be accompanied with "powered by Hey Oliver". The Customer acknowledges that Hey Oliver uses a third-party provider for mailing services, whose details are available in the list available at https://Hey Oliver.com/terms-of-service/list_of_sub-processors_and_sub-contractors.pdf.
(b) SMS. This clause 3.6 (b) applies only if specifically agreed between Hey Oliver and the Customer that Hey Oliver will provide SMS services. The Customer shall be solely responsible for the content of SMS messages sent as part of the Services. The Customer acknowledges that Hey Oliver uses a third-party provider for SMS services, whose details are available in the list available at https://Hey Oliver.com/terms-of-service/list_of_sub-processors_and_sub-contractors.pdf.
(c) Hosting. The Customer acknowledges that Hey Oliver uses a third-party provider for hosting services under the terms and conditions as stipulated in Hosting specific terms available at https://Hey Oliver.com/terms-of-service/sub-processors_and_webhosting_policy.pdf.
4. PRICING POLICY, PAYMENT TERMS AND TAXES
4.1. Fees. The Customer shall pay all Fees specified in the Order Form. Except as otherwise specified in the Agreement or in an Order Form, (a) the Fees are based on the respective available Event capacities purchased for the Services and not on actual usage; and (b) unless agreed otherwise in a specific case, payment obligations are non-cancellable and the Fees paid are non- refundable. Fees for connections to messaging Services are calculated on the basis of actual usage. Unless agreed otherwise, the Fees are calculated for monthly periods based on the calendar months. If the cooperation does not contain the whole calendar month, the fee for the respective month shall be calculated proportionally.
4.2. Payment terms. All amounts under the Agreement shall be prepaid in advance based on the authorisation to withdraw the respective funds from a payment instrument saved and pre- authorised in the Customer's account pursuant to clause 3.2 of these General Terms and Condition; for the avoidance of doubt, the Customer hereby authorises Hey Oliver or its payment providers to charge the payment instrument. In such case, Hey Oliver shall issue a standard invoice promptly after the payment is credited to the Hey Oliver bank account. If the Parties agree on subsequent payments based on an Order Form, all payments shall be made within fourteen (14) days after the receipt of the applicable invoice. All amounts are payable in EUR unless specified otherwise in an Order Form. Any amounts not paid when due shall accrue default interest at the rate of 0.1% per day. If such amount would exceed maximum default interest possible under the applicable law, then the Customer shall be obliged to pay only such maximum default interest.
4.3. Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, goods and services, harmonised, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction ("Taxes"). The Customer is responsible for paying all Taxes associated with its purchases pursuant to the Agreement. If Hey Oliver has a legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides Hey Oliver with a valid tax exemption certificate authorised by the appropriate taxing authority.
5.1. Neither Party will use any Confidential Information of the disclosing party except as necessary to exercise its rights or perform its obligations pursuant to the Agreement or as expressly authorised in writing by the other Party. Each Party shall use the same degree of care to protect the disclosing party's Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances shall each Party use less than reasonable care. Neither Party shall disclose the other Party's Confidential Information to any person or entity other than its officers, employees, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into confidentiality agreements as least as restrictive as the requirements in this clause.
6. DELIVERY AND WARRANTY
6.1. Access/Delivery of the Services. Hey Oliver shall provide the Services in the scope agreed in an Order Form by creating and/or authorising an already existing Account for the Customer. In principle, the Subscription Services shall be made available (delivered) after the payment is credited to Hey Oliver's bank account.
6.2. No Warranty. Unless stipulated otherwise in any relevant Order Form, the Services and the Guides are provided "as is" and without any representations, warranties and/or conditions of any kind. Each Party specifically disclaims any and all implied representations, warranties and/or conditions of merchantability, quality, and fitness for specific purpose. The Customer also acknowledges that Hey Oliver does not represent, warrant or provide any condition that the Services and/or the Guides will be error-free and work without any interruptions.
7.1. Force majeure. Hey Oliver shall not be liable for any damages in connection with a Customer's invalid request or as a result of force majeure. Hey Oliver shall also not be liable to the Customer for a third party breach, including any malfunction of underlying hardware platforms.
7.2. Relief Events. Where Hey Oliver's provision of any service, or performance of any obligation set out herein, is prevented as a direct or indirect result of any act or omission by the Customer (a "Relief Event") then Hey Oliver shall be granted an extension to all affected deadlines equal to the length of delay caused by the relevant Relief Event.
7.3. Information duty. The Customer shall without any undue delay inform Hey Oliver about the occurrence of any event that may affect the due fulfilment of the obligation set out herein and shall undertake its best endeavours to cooperate with Hey Oliver to overcome such events.
7.4. Liability limitation. Unless explicitly stipulated otherwise in the Agreement, Hey Oliver shall not be liable for any indirect or consequential loss or damage, loss of income or profit, loss of goodwill, loss of business opportunity, loss of contracts, loss of operating time, loss of use, loss of data, impaired reliability, or increased susceptibility to failure, arising out of or in connection with this Agreement. The limitation in this clause 7 of these General Terms and Conditions shall not apply to any infringement or misappropriation by either Party of the other Party's intellectual property rights. In no event shall Hey Oliver or its Affiliates be liable to the Customer for more than greater of (i) ten thousand euro; or (ii) the amount of any actual direct damages up to the amount paid by the Customer hereunder for the Services giving rise to liability in the twelve (12) months preceding the first incident from which the liability arose. The Parties agree that this clause represents a reasonable allocation of risks.
8. INTELLECTUAL PROPERTY RIGHTS AND DATA PROTECTION
8.1. Intellectual Property. Hey Oliver, and its suppliers and/or licensors if applicable, shall retain all rights (including but not limited to all patent rights, trademark rights, copyright, trade secrets and any other intellectual property rights) in and to the Services and any Guides. The Customer agrees that only Hey Oliver (or its Affiliates) shall have the right to enhance or otherwise modify the Services. If the Customer provides Hey Oliver with any reports of defects and/or suggests modifications ("Report"), Hey Oliver shall have the right to use such Report, including incorporating such Report into its Services or other software products, without any obligation to the Customer. Unless specifically agreed otherwise in writing, Hey Oliver reserves all rights and grants the Customer no licences of any kind, whether by implication or otherwise. Hey Oliver shall own and retain all right, title and interest in and to (a) the Services and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with implementation Services or support by Hey Oliver; and (c) information derived from aggregated and anonymised data, and (d) all intellectual property rights related to any of the foregoing.
8.2. Data protection.
Acknowledgement. The Customer acknowledges that it is, and shall for the duration of this Agreement be, the Data Controller in respect of the Customer Data and that Hey Oliver shall be a Data Processor. The Customer acknowledges and agrees that certain Customer Data may be provided to third parties for specific processing operations, in line with Customer's authorisations as described in the Guides. The Customer acknowledges that Hey Oliver shall have the right to access Customer Data, where such access is permitted by the Customer via settings in Hey Oliver's application, to (a) provide the Services; or (b) prevent or address service or technical problem; or (c) at the Customer's request in connection with Customer support matters.
Customer's duties. The Customer shall obtain the respective rights and/or consents to process the Customer Data from its respective clients in order to be provided with the Services in accordance with this Agreement. The Customer shall, at the time when personal data are obtained, provide its clients at least with all of the following information (a) identity and contact details of the Customer, (b) contact details of its data protection officer (where applicable), (c) purposes and legal basis of processing, (d) the legitimate interests pursued by Customer or third party (where applicable), (e) recipients or categories of recipients of the personal data, (f) where applicable, the fact that the Customer intends to transfer personal data to a third country or international organisation and the existence or absence of an adequacy decision by the Commission or in case of transfers are subject to appropriate safeguards, reference to the appropriate or suitable safeguards and the means by which to obtain a copy of them or where they have been made available, (g) period for which the personal data will be stored, (h) existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject or to object to processing as well as the right to data portability, (i) where applicable, existence of the right to withdraw consent at any time, (j) right to lodge a complaint with a supervisory authority, (k) where applicable, whether the provision of personal data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as whether the data subject is obliged to provide the personal data and of the possible consequences of failure to provide such data, (l) where applicable, the existence of automated decision-making. If specific Data Processing Addendum concluded between Customer and Hey Oliver does not state otherwise, the Customer shall not process the special categories of personal data and personal of Data Subject younger than eighteen (18) years old.
Hey Oliver's obligations. Hey Oliver shall (a) maintain commercially reasonable administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of the Customer Data and shall process the Customer Data strictly in line with applicable Legislation and only for the period of this Agreement; and (b) ensure that obligations to protect Customer Data (including the non-disclosure obligation) are observed by all of its employees and any other persons which may have access to the Customer Data on behalf of Hey Oliver (or its Affiliates) and shall inform such persons of any administrative, physical and technical safeguards for the protection of the Customer Data. Hey Oliver shall not (a) modify the Customer Data, except to the extent required to provide the Services; (b) disclose the Customer Data, except if compelled to do so by applicable Legislation, on the basis of the applicable Legislation, or if expressly permitted by the Customer; (c) access Customer Data except to provide the Services and to prevent or address service or technical problems or at the Customer's request in connection with Customer support matters; or (d) transfer the Customer Data outside of the European Economic Area other than in compliance with such obligations as may be imposed on it by the Legislation.
Security breach. Hey Oliver will undertake all commercially reasonable efforts to inform the Customer of any data security breaches involving the Customer Data once Hey Oliver becomes aware of such security breach. The Customer agrees that Hey Oliver's obligation to notify the security breach is not and will not be construed as an acknowledgment by Hey Oliver of any fault or liability of Hey Oliver with respect to such security breach.
Hey Oliver's rights. Hey Oliver shall be entitled to: obtain, collect, distribute, record, organise, adapt or alter, retrieve, consult, align, combine, transfer, use, store, block, destroy, including cross- border flows of the Customer Data. The Customer Data may only be processed for the purpose of providing Services to the Customer.
Cooperation. Each Party shall provide to the other Party all reasonable information about the processing of the Customer Data and cooperation that is reasonably required by the other Party for the fulfilment of its legal obligations arising out of legal regulations and/or on the basis of a request by the respective supervisory body. If Parties agree on the specific Data Processing Addendum, such Data Processing Addendum shall prevail in case of any discrepancies.
8.3. Artificial intelligence services. Notwithstanding anything to the contrary in the Agreement, Hey Oliver shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (i.e. anonymized aggregate information derived from Customer Data), and Hey Oliver will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and all capabilities of artificial intelligence that will increase the performance and effectiveness of the Customers' campaigns or for other development, diagnostic and corrective purposes in connection with the Services and other Hey Oliver's offerings (or offering of its Affiliates), and (ii) make such data available in the aggregated and anonymized form, i.e. via so-calledanonymized industry standard trends.
9. REPRESENTATION, WARRANTIES AND RESTRICTIONS
9.1. General. Each Party represents and warrants to the other Party that: (a) such Party is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation; and the execution, delivery and performance of the Agreement constitutes the legal, valid and binding obligation of such Party; and (b) such Party has all requisite corporate power and financial capacity, and authority to execute, deliver, and perform its obligations under the Agreement.
9.2. Restrictions. The Customer shall not (and shall not authorise any third party to): (a) modify, translate, reverse engineer, decompile, disassemble or create any derivative works based on the Services, except to the extent that enforcement of the foregoing restrictions is prohibited by applicable Legislation; (b) circumvent any user limits, Event limits, Usage limits or other timing, use or functionality restrictions built into the Services; (c) remove any proprietary notices, labels, or marks from the Services; (d) frame or mirror any content forming part of the Services; (e) access the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, modules, functions, or graphics of the Services; (f) register, directly or indirectly make it possible to register or anyhow support the third party registration of trademarks, business names or other designations of Hey Oliver (or related or similar business names or other designations); or (g) use Hey Oliver's intellectual property rights (or any related or similar logos and/or trademarks of Hey Oliver) for its benefit, e.g., by combination of Hey Oliver logos and/or trademarks with its own business name and/or company name or its own products or services. In case the Customer exceeds the Capacity Limitations or Usage Limitations, Hey Oliver may work with the Customer to seek to reduce the usage so that it conforms to the applicable limit. If, notwithstanding such efforts, the Customer is unable or unwilling to abide by a contractual usage limit, the Customer will execute an Order Form for additional quantities of the applicable Services promptly upon request of Hey Oliver, and/or pay any invoice for excess usage in accordance Section 4 of these General Terms and Conditions.
10. COMMUNICATION AND DELIVERY
10.1. Addresses of the Customer. For the purposes of delivery, Hey Oliver has been notified of the Customer's mail and e-mail addresses identified within its registration process or as may be amended within the Customer's profile in its Account. The Customer agrees that any communication from Hey Oliver with respect to the Agreement may be delivered electronically to the Customer's Account or to the e-mail address specified therein.
10.2. Customer references. Hey Oliver shall be entitled to publicly refer to the Customer as a user of the Services.
11. TERM, SUSPENSION AND TERMINATION
11.1. Term. The Agreement shall commence on the Effective Date and shall continue in effect unless it expires or is terminated ("Term"). The Term of each subscription shall be as specified in the applicable Order Form or if not specified, for a period of one (1) year. For the avoidance of doubt, if a trial version pursuant to clause 3.3 applies to the respective subscription, such subscription period will commence immediately after the expiration of the 14-days trial version. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or of one (1) year (whichever is shorter), unless either Party gives the other Party notice of non-renewal at least thirty (30) days before the end of the relevant subscription Term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be subject to the consent of Hey Oliver.
11.2. Suspension and termination for non-payment. If any amount owing by the Customer under this or any other agreement for the Services is overdue by thirty (30) or more days, Hey Oliver may, without limiting its other rights and remedies, suspend the provision of the Services to the Customer until such amounts are paid in full. Before suspending the Services, Hey Oliver will give the Customer at least seven (7) days prior notice that its account is overdue. If, following the notice sent pursuant to this clause 11.2, the respective payment is not paid in full, Hey Oliver may, at its sole and exclusive discretion, terminate the Services. Before terminating the Services, Hey Oliver will give the Customer at least seven (7) days prior notice that its account is overdue.
11.3. Termination for change of General Terms and Conditions. If the Customer does not agree with a new version of the General Terms and Conditions communicated to the Customer pursuant to the clause 13.6 hereof and such change to the General Terms and Conditions constitutes the substantial deprecation of the Services, the Customer may terminate the Agreement in respect to the particular deprecated part of the Services by delivering a termination notice to Hey Oliver within thirty (30) days after the effective date of such new version of General Terms and Conditions. For the avoidance of doubt, the following situations shall be considered as substantial deprecation of the Services: (i) The feature has been replaced by a more powerful alternative feature; (ii) a future version of the Hey Oliver tool will make major structural changes, making it impossible (or impractical) to support older features. In such case, the Agreement is terminated in respect to the particular part of the Services at the end of the thirty (30) day period provided for the delivery of the termination notice. In case the Fees are stipulated in the manner that it cannot be divided into parts, the Parties undertake to negotiate about alternative services, that can Hey Oliver offer to the Customer instead of the deprecated part. If no termination notice of the Customer is served and delivered to Hey Oliver within the thirty (30) day deadline, the Customer is deemed to have accepted the new version of General Terms and Conditions. After expiry of this deadline, the Customer is not entitled to terminate the Agreement for the reason specified in this clause 11.3.
11.4. Termination. The Agreement may, in addition to the reasons stipulated in clauses 11.2 and 11.3, be terminated as follows: (a) if either Party breaches any material term or condition of the Agreement and fails to cure such breach within thirty (30) days after receiving notice of the breach, the non-breaching Party may terminate the Agreement on notice at any time following the end of such thirty (30) day period; (b) if either Party becomes insolvent on the basis of a respective court order, then the other Party may terminate the Agreement immediately upon notice; or (c) if the change of control in Customer occurs, the Customer shall inform Hey Oliver within thirty (30) day, and Hey Oliver may terminate the Agreement within additional thirty (30) days after the information about the change of control is delivered. In case the Customer does not inform Hey Oliver about the occurrence of the change of control, and Hey Oliver founds out independently, Hey Oliver may terminate the Agreement within thirty (30) days after it gets familiar with the change of control. For the avoidance of doubts, neither Party is entitled to terminate this Agreement without cause. If the Customer sends a termination notice to Hey Oliver prior to expiration of the relevant term (other than a non-renewal notice and notice for breach), such action shall constitute a breach of terms of this Agreement by the Customer. In such case Hey Oliver is entitled (i) to cease the providing of Services from the first day of the month immediately following the month in which the termination notice was delivered to Hey Oliver; and (ii) to require a payment (contractual penalty) in the amount corresponding to the one half (1/2) of the Subscription Fee for the remainder period to the end of the respective subscription term payable immediately upon request of Hey Oliver. Upon expiration or termination of the Agreement, the Customer shall cease all use of the Services, and shall promptly return all copies of the Guides to Hey Oliver or otherwise destroy those copies and provide assurances (signed by an officer of the Customer) to Hey Oliver that it has done so if requested by Hey Oliver.
11.5. Money-back Guarantee. If the Customer terminates the Agreement for whatever reason within the first sixty (60) days after the commencement of the Term, Hey Oliver shall refund to the Customer all Subscription Fees already paid for the Subscription Services.
11.6. Return of data. Upon the request of the Customer that is made within thirty (30) days after the effective date of termination or the expiration of a Services subscription, Hey Oliver will make such Customer Data available to the Customer in a file for download in (.json) format together with any attachments in their native format. After such thirty (30) day period, Hey Oliver shall have no obligation to maintain or provide any such Customer Data and may thereafter, unless legally prohibited from doing so, delete all such Customer Data in Hey Oliver's systems, under Hey Oliver's control or otherwise in Hey Oliver's possession. Upon instruction of the Customer, Hey Oliver shall, unless and to the extent legally prohibited from doing so, (i) delete all Customer Data in Hey Oliver's system, which were requested by the Customer, in accordance with applicable law within commercially reasonable time; and (ii) instruct all subcontractors listed at https://Hey Oliver.com/terms-of-service/list_of_sub-processors_and_sub-contractors.pdf, if applicable in the case of respective Customer to delete Customer Data form the subcontractor's system. The Customer acknowledges that for the hosting services, the Hosting specific terms available at https://Hey Oliver.com/terms-of-service/sub-processors_and_webhosting_policy.pdf applies. For the avoidance of doubt, the Customer acknowledges that this clause 11.5 shall not apply to the following: (a) Customer Data in logs; (b) aggregated data and (c) data stored for the statistical purposes.
12. SPECIFIC CONDITIONS FOR CONSULTING AND OTHER TAILORED SERVICES
12.1. Applicability. Apart from the provision of the Subscription Services, Hey Oliver may, on the basis of a mutual agreement with the Customer, also provide other Services to the Customer. Such Services may include Hey Oliver setup consulting, business planning, training, other consulting (either pre- paid or on-demand), implementation or maintenance, and testing. The specific terms and conditions set out in this clause 12 shall apply to these Services.
12.2. Ordering Services. Any tailored Services (including any deliverables) to be provided by Hey Oliver to the Customer must be agreed by both Parties by virtue of an Order Form. Consulting services may be ordered by the Customer in different modes: (a) consulting required for the proper onboarding of the Customer to other Services of the Customer ("Setup"); (b) pre-paid consulting services for more beneficial hourly rates; and (c) standard consulting services.
12.3. Manner. Hey Oliver shall provide the Services and develop any related deliverables for the Customer described in the respective Order Form agreed by the Parties. Hey Oliver shall provide these Services in a reasonable, professional manner in keeping with professional standards and practices. Unless agreed otherwise in the respective Order Form, Hey Oliver shall be entitled to, at its sole discretion, determine the methods and means for performing the Services and developing any related deliverables.
12.4. Subcontractors. The Customer undertakes and agrees that Hey Oliver may utilise the services of independent consultants ("Subcontractors") from time to time to perform, or to assist Hey Oliver in performing, the Services and develop the deliverables. Personnel of Hey Oliver and of the Subcontractors shall remain under the control of Hey Oliver.
12.5. Cooperation. The Customer acknowledges and agrees that performance of the Services is heavily dependent on the information and responses to be provided by the Customer. Accordingly, in addition to any specific responsibilities set out in the respective Order Form, the Customer shall:
(a) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by Hey Oliver; (b) carry out reviews and respond to requests for approval and information on a timely basis; and (c) make available to Hey Oliver all equipment, material, information, data, network access and/or facilities that Hey Oliver may reasonably require to carry out its obligations. The Customer acknowledges that any delay on its part in the performance of its obligations may have an impact on Hey Oliver's performance of its activities under the Agreement or under any Order Form, and Hey Oliver shall not be liable for any delay to the extent caused by Customer's failure to fulfil any of its requirements under the Agreement or any Order Form.
12.6. Fees and Payment for Tailored Services. The Customer shall pay the Fees as agreed in the respective Order Form, either on a time spent basis (e.g. on-demand consulting) or on a fixed fee basis (e.g. set-up of Hey Oliver). The Parties acknowledge that any pre-paid Services shall not be reimbursed, even if not utilised by the Customer, due to their typically lower price per unit. Any Fees are payable in line with the Agreement or an Order Form. The Customer shall reimburse Hey Oliver for all reasonable out-of-pocket expenses incurred by Hey Oliver in the performance of the Services, provided that such expenses are approved by the Customer.
12.7. Term and Termination. This clause 12 shall remain in effect only during the Term of the Agreement pursuant to clause 11 of these General Terms and Conditions. Unless provided otherwise in an Order Form, if the Customer terminates the Agreement (or a part thereof) or an Order Form pursuant to clause 11.4(c) of these General Terms and Conditions, the Customer shall pay Hey Oliver the full Fee for any tailored Services performed (including all other costs for which Hey Oliver has the right to reimbursement) up to the effective date of the termination of the relevant part of the Agreement (or Order Form); provided that if the Fee for any deliverables are based on identified milestones being achieved by Hey Oliver, the Customer shall pay Hey Oliver the pro-rated fee for the next scheduled milestone with such pro-rated fee to be determined based on the percentage of time between the commencement of work on such milestone and the effective date of termination.
12.8. Intellectual Property Rights. Unless otherwise stipulated in the Agreement or an Order Form, Hey Oliver shall own all rights in any and all intellectual property rights to any deliverables created by Hey Oliver pursuant to this clause 12 of these General Terms and Conditions. Hey Oliver shall retain all right, title and interest and all intellectual property rights to any and all of Hey Oliver's proprietary information and software (including but not limited to any modifications to the Services and/or the Guides). Subject to the payment of the applicable Fees set forth in an Order Form, Hey Oliver grants to the Customer a worldwide, fully-paid (such payment is already included in the Fees), non- exclusive, non-transferrable licence to use the deliverables created pursuant to this clause 12 for the purposes described in the accompanying Order Form.
12.9. No Legal Services. No warranty of any kind whatsoever, express or implied, is made or intended in connection with the consultations on marketing standards and/or data protection practices provided by Hey Oliver's consultants, employees, officers, or other cooperating persons ("Consultants") to the Customer, as the Consultants cannot assess the implications of such consultations in the context of all Customers' activities. Such consultations represent possible alternatives how to solve the particular issue, whereas the Customer is advised and encouraged to consult any further steps that should be based on such recommendations with their legal counsel. Nor Hey Oliver neither Consultants shall be liable for any incorrect advice, judgement, or consultation based on any inaccurate information furnished by the Customer, his agents or his other consultants.
12.10. Acceptance and Takeover. Takeover of the Services of Hey Oliver by the Customer shall follow the acceptance procedure set out in this clause 12.10. of these General Terms and Conditions. The acceptance procedure involves comparing the basic properties of the respective tailored Services with the criteria specified in the respective Order Form ("Acceptance Criteria"). If no such Acceptance Criteria are agreed, then the respective tailored Services are deemed to be accepted by the Customer immediately following their delivery by Hey Oliver. If the Services do not satisfy the Acceptance Criteria, then: (a) the Customer shall itemise in writing each failure to satisfy the Acceptance Criteria without any undue delay but by no more than five (5) Business Days after delivery of such tailored Services or their part (otherwise such tailored Services are deemed to be accepted by the Customer); the formulation of the Customer's comments must always contain at least the following elements: (i) the name of the output to which the comment applies; (ii) the content of the comments should be specifically formulated, i.e. so that it is clear in what the comments lie to be able to incorporate it within such Services; (iii) guidelines detailing the progress of the implementation of the comments, or the characteristics of targets or the target state after the incorporation of comments; (b) Hey Oliver shall use its best efforts to correct the Services and to deliver the Services to the Customer for re-testing and acceptance; and (c) the acceptance period shall be halted while Hey Oliver is working on the corrections to the Services as part of the acceptance procedure. The period shall continue after the failure specified by Customer is corrected by Hey Oliver. For the avoidance of doubt, (i) if at any time the Customer commences with the live operation of the whole or any part of the respective Services, then Customer shall be deemed to have accepted such Services; and (ii) any shortcomings that have no material effect on the standard functionality of the Services do not impede the delivery thereof and the deemed acceptance of the Services pursuant to this clause.
13. FINAL PROVISIONS
13.1. Severability. If any provision in this Agreement is shown to be (or later becomes) invalid or inefficient or inapplicable, it will not affect other provisions hereof that will remain valid and effective. The Parties undertake to replace an invalid or ineffective provision with a new provision that best corresponds to the originally intended purpose of the invalid or ineffective provision within the period of thirty (30) days from the date of the delivery of the call of one Party to the other Party; otherwise a new provision will be determined by the respective court upon the proposal of one of the Parties.
13.2. Set-off. The Customer is not authorised to offset any of its claims against any of Hey Oliver's claims nor is it authorised to retain payments, in any manner, intended for Hey Oliver regardless of the nature and/or purpose of such payments. Hey Oliver is authorised to offset its claims against claims of the Customer if the Customer is informed in advance of Hey Oliver's intention to offset; in the event of such offsetting, Hey Oliver will notify the Customer of the reason for the offsetting as well as the identification of the claims to which the offsetting will apply, and the amounts of the claims and their due dates.
13.3. Assignment of rights. Any rights arising for the Customer hereunder can be transferred (assigned) to third persons with Hey Oliver's approval exclusively. The Customer hereby provides its approval to the assignment of the rights and the assumption of the obligations of Hey Oliver that arise hereunder to Hey Oliver Affiliates or other third parties.
13.4. Severability. The provisions of these General Terms and Conditions are severable, and if any part of them is held to be illegal or unenforceable, the validity or enforceability of the remainder of them will not be affected.
13.5. Applicable law. The Agreement and any disputes and claims arising out of or in connection with its subject matter are governed and construed in accordance with the laws of the Republic of Cyprus or the laws of the country of registration of the respective Affiliate providing the Services based on the respective Order Form.
13.6. Jurisdiction. Any dispute arising from or in connection with the Agreement, including a dispute regarding the existence, validity or termination of the Agreement or the consequences of its nullity shall be finally decided by competent Cypriot courts or the competent courts of the country of registration of the respective Affiliate providing the Services based on the respective Order Form.
13.7. Change of the General Terms and Conditions. Hey Oliver may from time to time at its sole discretion issue new version of the General Terms and Conditions. In such case, Hey Oliver shall notify the Customer on e-mail address identified within the registration process. If the Customer does not agree with a new version of the General Terms and Conditions, the Customer shall notify Hey Oliver within thirty (30) days from the information of Hey Oliver about the new version of the General Terms and Conditions, that he does not wish to be bound by the new version of the General Terms and Conditions. In such case, the Agreement remains to be govern by the actual version of the General Terms and Conditions till the end of the respective subscription period.