Effective May 25th
Date of Last Revision: May 7, 2018
We provide a collection of tools and resources to manage, track and automate sales forecasting and next steps in the sales process and provide other related services (collectively, the “Services”). The following are the terms and conditions for use of the Services (the “Terms”), along with any amendments thereto and any operating rules or policies that may be published from time to time by Olono, Inc. (“Olono”). THE COMPANY HAS REVIEWED AND ACCEPTS OF THE TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING THOSE CONTAINTED IN THE ORDER (as defined below) AND YOU ARE DULY AUTHORIZED TO ACT ON BEHALF OF COMPANY AND BIND IT TO THIS AGREEMENT.
1. Services and Terms
1.2 Olono may make changes or modifications to this Agreement at any time, and such changes or modifications are effective upon Company’s written acceptance of such changes or modifications. In addition, when using particular Olono Services, Company and Olono will be subject to any posted guidelines or rules applicable to such Services that may be posted from time to time.
1.3 Company must complete a registration form and select a Services plan (“Order”) to use the Services. Company will provide true, accurate, current, and complete information about Company as requested in the registration form, and will update the information to keep it current. Olono will create and assign a login ID/ authorized user ID for Company and allow Company to select Company’s password to enable Company to administer online access by Company’s authorized users of the Services identified by user categories defined by Olono (i.e. sales managers, sales representatives, etc.) (collectively, “Authorized Users”). Each Authorized User will be named and identified by Company in the Services and may access and use the Services using individual logins. Company may permanently (i.e., not for a predefined temporary period of time) replace one Authorized User with another if the original Authorized User no longer has access to the Services. Each Authorized User will be designated using a method that incorporates the user’s name (e.g. John T. Smith or jsmith) or is otherwise directly correlated with a specific individual. The number of Authorized Users may not exceed the number of Authorized Users authorized by Olono for each defined user category (i.e. sales managers, sales representatives) set forth on the Order and paid for by Company. Company will identify certain Authorized Users who will have administrative, security and supervisory capacities with respect to Company’s online access to the Services (“Administrative Users”).
1.4 Company will (a) be responsible for Company’s and Company’s users’ compliance with the terms and conditions of this Agreement; (b) be responsible for the confidentiality of (and for all activities that occur under) the login ID/ authorized user IDs and passwords assigned to or selected by Company; and (c) prevent unauthorized access to or use of the Services using Company’s login ID/ authorized user ID and passwords assigned to or selected by Company, and notify Olono promptly of any such unauthorized access or use of which Company is aware. Company acknowledges that only certain Internet browsers and browser versions are capable of accessing the Services. Company may obtain the then-current list of such browsers and browser versions from Olono upon request.
1.5 From time to time, Olono may allow Company to order Services on a free trial basis. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE SERVICES PROVIDED DURING THE FREE TRIAL PERIOD ARE PROVIDED AT COMPANY’S SOLE RISK, “AS-IS” AND WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND.
1.6 Company will provide, upload or import into the Services, and/or permit Olono to remotely access, upload and import, data, information, materials and processes as necessary and required for Olono to perform the Services for Company (“Company Content”) including, without limitation, Company Content generated, maintained and/or stored by third party applications used by Company (“Third Party Applications”). The sources of the Company Content, whether from Company or Third Party Applications are called “Data Sources” for purposes of this Agreement. Company grants Olono a worldwide, non-exclusive and royalty-free license to access, copy, use, store, host, make derivative works of, adapt, display, perform, transmit and distribute to Company such Company Content under or in connection with this Agreement as necessary and required to perform the Services for Company. Company has obtained all necessary permissions, rights and consents for all Company Content provided to Olono, including without limitation the right to access, upload and import Company Content from Third Party Applications and other Data Sources, under this Agreement to enable Olono to perform the Services for Company.
1.7 During the applicable Subscription Term (as defined below), Olono will provide Company with Olono’s standard support for the Services purchased by Company at no additional cost to Company.
1.8 Company is solely responsible for complying with the laws affecting or regulating its business, employees and the like. Company understands that Olono’s provision of the Services does not relieve Company of any responsibility and liability for those matters that Company would otherwise have. Company is solely responsible for ensuring Company’s use of the Services complies with applicable laws, rules and regulations. Except as expressly set forth with respect to Olono’s responsibilities under this Agreement, Company is solely responsible for any and all damages that flow from Company’s use of the Services.
1.9 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18.
2. Proprietary Rights
2.1 Except for the limited rights expressly granted by Olono to Company hereunder, Olono reserves all right, title and interest in and to the Services and Olono Materials (defined below), including all related intellectual property rights, and no other rights are granted to Company, whether by estoppel, implication or otherwise. Title to the Services is not conveyed hereunder.
2.2 Except for the limited rights expressly granted by Company to Olono hereunder, Company reserves all right, title and interest in and to Company Content, including all related intellectual property rights, and no other rights are granted to Olono, whether by estoppel, implication or otherwise. Title to the Company Content is not conveyed hereunder.
2.3 This is an Agreement for services, and Company is not granted a license to any software, technology or intellectual property by this Agreement. Company will not: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of or included in the Services or any software, documentation or data related to the Services; (b) copy or frame any part or content of the Services other than as reasonably necessary for Company’s own internal use of the Services in accordance with the Agreement; (c) permit any third party to access the Services except as permitted herein and in the applicable Order; (d) modify, translate or create derivative works based on the Services; (e) distribute, pledge, assign or otherwise transfer or encumber rights to the Services; or (f) use the Services for timesharing or service bureau purposes. Company may download or copy content of the Services (excluding Company Content) only as reasonably necessary for Company’s own internal use of the Services in accordance with the Agreement. No right, title, or interest in any downloaded materials (excluding Company Content) is transferred to Company as a result of any such downloading and Olono reserves all right, title and interest in and to the materials (excluding Company Content) Company downloads from the Services including all related intellectual property rights. Company may only access and use the Services as a business productivity tool for Company’s own internal use and any other access or use by Company is strictly prohibited under this Agreement. Without limiting the generality of the foregoing, Company will not access or use the Services if Company is a direct competitor of Company or for purposes of copying any features, functions, content or graphics of the Services, or benchmarking or monitoring availability, performance or functionality of the Services, or any other competitive purpose.
2.4 As part of the Services, Olono makes available to Company certain Olono Materials. “Olono Materials” includes, without limitation, any or all of the following used or provided by Olono to provide the Services hereunder and provide the finished output created by the Services, together with all associated intellectual property rights: (a) any templates, text, graphics, designs, art, information or other content; (b) web pages, graphic files, text files, scripts, software, code and other components; (c) software, tools, documentation, data and other material; and/or (d) any routines, methodologies, processes or technologies created, adapted or used by Olono in performing the Services. Olono Materials are deemed Olono Confidential Information.
2.5 In using the varied features of the Services, Company may provide information (such as name, contact information, or other registration information) to Olono. Olono may use this information and any technical information about Company’s use of this website to tailor its presentations to Company, facilitate Company’s movement through this website, or communicate separately with Company.
2.6 “Olono” and its logos (both words and design) either are trademarks, service marks, or registered trademarks of Olono, and may not be copied, imitated or used, in whole or in part without Olono’s prior express written consent. In addition, all page headers, custom graphics, design and user interface elements, and scripts are service marks, trademarks, and/or trade dress of Olono and may not be copied, imitated, or used, in whole or in part without Olono’s prior written permission, which consent may be withheld in its sole discretion. All other marks or logos not owned by Olono are the property of their respective owners.
2.7 Olono will own any and all Aggregate Data produced from Company’s use of the Olono Services. For the purposes of this Agreement, “Aggregate Data” means any and all data produced from the Company’s use of the Olono Services for broad groups or categories in which the Company and any characteristics of individual persons, transactions, and customers are no longer identifiable, including but not limited to metadata.
2.8 Olono has an information security program including technical, physical and administrative procedures designed to protect Company’s Confidential Information and personal information utilizing industry standard policies and technologies.
3. Term and Termination
3.1 Term. The Services are provided on a subscription basis. Company’s Subscription Term commences on the Subscription Term start date specified in Company’s Order for Services and, unless terminated earlier in accordance with this Agreement, will continue in effect for the period of time stated in the Order (the “Initial Subscription Term”). At the end of the Initial Subscription Term, the Order will automatically renew (each a “Renewal Subscription Term”) without notice to Company at the same fees (subject to pricing modifications pursuant to Section 4.1 below), term, Services plan, Authorized User number, Data Sources and billing cycle unless either Company or Olono gives written notice of termination at least 30 days before the end of the applicable Initial Subscription Term or Renewal Subscription Term. “Initial Subscription Term” and each “Renewal Subscription Term” together are referred to herein as the “Subscription Term.”
3.2 Termination. Either party may terminate this Agreement immediately upon delivery of written notice for cause if the other party commits a breach of this Agreement and has not remedied such breach within 30 days of receipt of notice of such breach from the non-breaching party. Neither party has the right to terminate this Agreement for convenience or without cause.
3.3 Bankruptcy. Either party may terminate this Agreement immediately upon delivery of written notice if (a) the other party makes an assignment for the benefit of creditors, or (b) the other party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets.
3.4 Effects of Termination. Upon termination of this Agreement by either party for any reason: (a) Olono will cease providing the Services; (b) Company will not be entitled to any refunds of any Services fees, usage fees or any other fees, pro-rata or otherwise unless the termination is by Company for Olono’s uncured breach of the Agreement in which case Olono shall refund Company all prepaid fees coving the remainder of the relevant Subscription Terms after the effective date of termination; (c) any outstanding balance owed to Olono for Company’s purchase of the Services, or any usage fees or other fees owed to Olono, will immediately become due and payable in full within 30 days from effective date of Termination; and (d) Olono will maintain Company’s data for a period of 30 days and for that period will make Company’s data available to Company for export or download by the Company.
3.5 Non-Exclusive Remedy. Except as otherwise expressly stated herein, termination of this Agreement by either party will be a nonexclusive remedy and will be without prejudice to any other right or remedy of such party. Except as otherwise expressly stated herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative.
3.6 Survival. All sections of this Agreement which by their nature should or are intended to survive, will survive termination of this Agreement, including, without limitation, warranty disclaimers, limitations of liability, indemnities and confidentiality. Termination of this Agreement will not relieve Company of its obligation to pay all fees and expenses that accrued before such termination.
4. Fees and Payment; Upgrade, Downgrade and Cancellation of Services
4.1 Fees. In consideration of the Services provided, Company will pay Olono all fees due according to the prices and payment terms listed in the relevant Olono Services Order Form and payment terms are Net 30 from invoice date. Olono reserves the right to modify its pricing and payment terms at any time; provided, however, (a) such modifications for the Services currently under subscription by Company will not take effect until the next renewal of Company’s Subscription Term, and (b) Olono will provide Company with at least 60 days prior written notice of such modifications before the next renewal of Company’s Subscription Term. Subject to the foregoing, and except as set forth in Company’s Order for Services, modifications of pricing and payment terms for upgrade or downgrade of the Services will be effective immediately with and/or without notice to Company. All payments are NON-REFUNDABLE except as stated in Section 3 “Term and Termination”.
4.2 Billing Policies and Cycles. All billing invoices and payment notifications will be provided to Company via email or (when available) maintained in Company’s account portal. The billing cycle for Services begins on the day Company starts paid Services (“Billing Date”) and is due on that day each month, partial year or year thereafter, depending on the Services plan selected and billing terms for individual Services. Billing related to the purchase of one-time purchases (e.g. professional services or training) are billed upon purchase. Payment is due in advance for the Subscription Term unless different payment terms are specified on the Order. During a Subscription Term, payment for additional Authorized Users, additional Data Sources or other products and services purchased and billing terms will be as specified by Olono on the Order or in the Services plan. Company is responsible for maintaining a current billing primary contact with Olono at all times.
4.3 Payment. Unless otherwise set forth in the Order, payment will be made by Company via ACH or valid credit card. If Company provides credit card information to Olono, then Company authorizes Olono to charge such credit card for all the Services listed on the Order for the Initial Subscription Term and any Renewal Subscription Term(s), and any other products and services purchased by Company during the Subscription Term. Olono will automatically charge Company’s credit card on file based on Company’s billing cycle (monthly, partial year or yearly) for the specific Services purchased depending on the specific Services plan selected and billing terms for such Services, until Company validly terminates the Services. Company will promptly update Company’s account information with any changes in Company’s payment information. All amounts paid or payable hereunder will be in U.S. dollars. Fees for prepaid Services are based on Services purchased, regardless of actual usage, and are NON-REFUNDABLE EXCEPT AS STATED IN SECTION 3 “TERM AND TERMINATION”. EXCEPT AS STATED IN SECTION 3 “TERM AND TERMINATION”, OLONO DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL DAYS, MONTHS OR YEARS AND DOES NOT PROVIDE REFUNDS TO COMPANIES WHO DO NOT USE THEIR ACCOUNTS OR LOG IN.
4.4 Unpaid Accounts. Any undisputed (in good faith) Company payment not received by the due date may, at Olono’s sole discretion, accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Company must notify Olono in writing, within 30 days of the applicable invoice date, of any fees or charges disputed in good faith, and any fees or charges not disputed within such 30-day period will be considered valid and no adjustment will be made. In no event will Company’s notice of good faith dispute relieve Company of its obligation to pay, in full, all undisputed amounts when due. If Company’s account is overdue (except with respect to fees or charges disputed in good faith), in addition to any of its other rights or remedies available to Olono hereunder or at law or equity, Olono may, in its sole discretion, terminate this Agreement or suspend Company’s access to its account; provided, that Olono has given Company 30 days’ prior written notice of its intent to terminate the Agreement or suspend Company’s account access and Company has failed to bring its account current during such period. Olono will have no liability to Company as a result of any such suspension of Company’s account or termination of this Agreement.
4.5 Additional Authorized Users and/or Data Sources. The Services purchased by Company are sold by Olono on a per Authorized User and per Data Source basis. If Company desires to purchase and add additional Authorized Users and Data Sources to Company’s Subscription Term, then Company will be billed immediately for the additional Authorized Users and Data Sources pursuant to Olono’s then-current fees and payment terms, unless pricing for such additional Authorized Users and Data Sources is specifically set forth in the applicable Order. While Company may add Authorized Users and Data Sources during a Subscription Term, Company may only reduce Authorized Users and Data Sources on renewal of the Subscription Term (so long as Company notified Olono of any such reductions in Authorized Users and Data Sources at least 30 days before renewal).
4.6 Cancellations. Company will not have the right to cancel or terminate the Services, except pursuant to Section 3.
4.7 Taxes. All fees are exclusive of all federal, state, and/or other governmental sales, goods and services, value-added, or other taxes, fees or charges. Company will be responsible for all sales, goods and services, value-added or other taxes, fees or charges.
5.1 “Confidential Information” means all confidential information disclosed by one party to the other party under or in connection to this Agreement (including but not limited to marketing plans, business strategies, pricing, Company Content, Olono Materials and templates, and technical information,) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of its disclosure. The terms and pricing of Orders are deemed Confidential Information.
5.2 The receiving party will: (a) hold the disclosing party’s Confidential Information in confidence using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) restrict disclosure of the disclosing party’s Confidential Information to those of its employees, consultants, contractors, agents or representatives (“Representatives”) with a need to know such information and who have agreed, either as a condition of employment, representation or in a written agreement in order to obtain the Confidential Information, to be bound by terms and conditions no less restrictive than the terms and conditions applicable to the receiving party under this Agreement; and (c) not use the disclosing party’s Confidential Information for any purpose outside the scope of this Agreement. The receiving party will be responsible for any breach of this Agreement by its Representatives.
5.3 The restrictions in this Section 5 will not apply to Confidential Information to the extent that it (a) is already known to the receiving party and is not subject to confidentiality restrictions at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately before the time of disclosure; (b) has become publicly known and made generally available after disclosure by the disclosing party to the receiving party through no wrongful act of the receiving party; (c) has been rightfully received by the receiving party from a third party who is authorized to make such disclosure without a breach of such third party’s obligations of confidentiality is not subject to confidentiality restrictions; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
5.4 The receiving party may disclose Confidential Information of the disclosing party pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that (if not prohibited by law) the receiving party gives the disclosing party prompt written notice of such requirement before such disclosure and reasonable assistance, at the disclosing party’s request and expense, to contest such order or requirement or seek confidentiality treatment. Each party may disclose terms and conditions of this Agreement (a) in connection with any financing transaction or due diligence inquiry; (b) pursuant to a registration statement, annual, quarterly or current report, proxy statement, or other filing with, and any exhibits thereto, filed with the Securities and Exchange Commission, securities exchange or quotation service, or any state securities commission, or any other associated documents or materials so filed or furnished; and/or (c) on a confidential basis to legal or financial advisors.
5.5 Company acknowledges and agrees that employees, consultants, contractors, agents and representatives of Olono who have received or have been exposed to Company’s Confidential Information may further develop their knowledge, skills and experience (including, but not limited to, ideas, concepts, know-how and techniques), which may be based on such Confidential Information. The restrictions in this Section 5 will not apply to the subsequent use, and disclosures incidental to such use, by such employees, consultants, contractors, agents and representatives of such knowledge, skills and experience, as unintentionally retained in their unaided memories. The receipt of or exposure to Company’s Confidential Information under this Agreement will not in any way limit or restrict the work assignments of any of Olono’s employees, consultants, contractors, agents or representatives.
5.6 Company acknowledges that the following information is not Company Confidential Information and agrees to assist Olono with the following tasks related to publicity and marketing only upon written consent by Company to Olono: (a) use of Company’s corporate name and corporate logo on the Olono website and in Olono marketing materials for the purposes of providing a customer list to existing customers and potential prospects; (b) issuance of a press release which identifies Company’s organization as a customer, and provides a high level description of the benefits expected to be achieved by the implementation; and (c) at Company’s discretion, support for a limited number of reference calls from potential customers.
6. Company Feedback; Discussion Areas
6.1 User feedback is essential to the continued improvement of Olono’s products and services. Olono will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Company or any other party with respect to the Services.
6.2 Olono makes no representations or warranties with respect to any forums, blogs, private messages, emails, or other electronic discussion mediums made available on or via the Services (collectively, “Discussion Areas”) or with respect to any messages, information, or materials contained in the Discussion Areas. Company’s use of, or reliance upon, any such messages, information, or materials is at Company’s sole risk and expense. Olono does not, and cannot, review all of the information and materials provided in the Discussion Areas and has no responsibility or liability for any such information or materials or their use. If Olono becomes aware of any information or materials that it determines violate these Terms or the Discussion Areas’ policies promulgated by Olono from time to time or that Olono otherwise deems inappropriate in its sole discretion, Olono reserves the right to delete, move, or edit any such information or materials.
7. Export of Services or Technical Data
7.1 Company may not remove or export from the United States or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
8.1 Even though Olono backs up data on its servers on a regular basis, Company understands and agrees that it can and should retain copies of its own files and Company Content and not rely solely on Olono as the only back up source for Company’s files and Company Content. UNDER NO CIRCUMSTANCES WILL OLONO BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF COMPANY’S FILES AND/OR COMPANY CONTENT ON ANY OLONO SERVER.
9. Representations and Warranties; Warranty Disclaimer
9.1 Both parties represent and warrant that: (a) they have the right to enter into this Agreement and to perform its obligations under this Agreement; (b) the execution, delivery and performance of this Agreement does not conflict in any material respect with, or constitute a material breach or default of, any organizational document, agreement, or other writing to which it is a party; (c) they have all licenses, permissions and agreements necessary or appropriate to grant the rights granted by it under this Agreement; (d) they will comply with all applicable laws, rules, and regulations in connection with its performance under this Agreement; and (e) the Company Content and Data Sources do not and will not infringe on or misappropriate any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy or contractual rights and (f) the Olono software, services or materials do not and will not infringe on or misappropriate any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy or contractual rights.
9.2 Company represents and warrants that Company will use the Services only in compliance with these Terms, Olono’s Acceptable Use Policy, and all applicable laws (including, without limitation, laws related to privacy, spamming and obscenity). Although Olono has no obligation to monitor the Company Content provided by Company or Company’s use of the Services, Olono may do so and may remove any such Company Content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
9.3 Company represents and warrants that it will not (and will not permit its Authorized Users to) use the Services to upload, store or distribute any documents, data, images, messages or other material which is obscene, harassing, malicious, fraudulent or libelous, or which contain nudity, or infringe or misappropriate the rights (including, without limitation, the intellectual property, privacy or publicity rights) of third parties, and Company will not use the Services for any activity that gives rise to any actual or potential civil or criminal liability. Company acknowledges and agrees that Olono has no control over the content of any Company Content or Data Sources and is not and will not be responsible or liable for such content.
9.4 Olono and Company represent and warrant that it will not (and will not permit its Authorized Users to) use the Services for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks, or engaging in other activities intended to disrupt or interfere with, or that result in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment) or conduct their business over the Internet.
9.5 The list of prohibitions in this Section 9 provides examples of prohibited conduct, and is not intended to be a complete or exclusive list of all prohibitions. Engaging in any activity that, in Olono’s sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, Olono’s business, operations, reputation, goodwill, customers and/or customer relations, or the ability of Olono’s customers to effectively use the Services is prohibited. Without limiting the rights and remedies available to it, Olono reserves the right in its sole discretion, to suspend or terminate Company’s access to its account and the Services, with or without notice, and to take any other action that Olono determines in its sole discretion is necessary as a result of any behavior by Company that is illegal, inappropriate, disruptive to this website, the Services, or to any other user of this website or the Services, or which otherwise breaches these Terms. Olono may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required, or otherwise in Olono’s sole discretion, Olono will cooperate with law enforcement agencies in any investigation of alleged illegal activity conducted using this website or the Services.
9.6 THE SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS, AND EXCEPT AS SPECIFICALLY STATE IN THIS AGREEMENT OLONO DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FURTHERMORE, OLONO DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
9.7 IN ADDITION, COMPANY SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY OLONO, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS SUPPORT CENTER OR COMPANY SERVICE REPRESENTATIVES), WHETHER DIRECTLY OR INDIRECTLY, WILL (A) CONSTITUTE PERSONAL, LEGAL OR FINANCIAL ADVICE OR (B) CREATE A WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE SERVICES, THIS WEBSITE, THESE TERMS AND THE AGREEMENT. COMPANY SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE, AND COMPANY SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO ITS SITUATION.
9.8 ANY AND ALL USE OF, INTERPRETATIONS AND DECISIONS MADE BY COMPANY AS A RESULT OF USING, THE SERVICES OR OTHER INFORMATION PROVIDED BY OLONO UNDER THE TERMS HEREOF ALSO INCLUDE THE OPINION AND JUDGMENT OF COMPANY. COMPANY HAS FULL RESPONSIBILITY FOR USE OF, ALL SUCH INTERPRETATIONS AND DECISIONS MADE BY COMPANY USING, ANY SERVICES OR OTHER INFORMATION PROVIDED BY OLONO UNDER THE TERMS OF THIS AGREEMENT. OLONO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE ABILITY, COMPETENCE, KNOWLEDGE OR SKILL OF COMPANY’S PERSONNEL TO UTILIZE SUCCESSFULLY OR APPROPRIATELY, IN ANY CIRCUMSTANCE, ANY OF THE SERVICES.
9.9 THE FOREGOING DISCLAIMER OF REPRESENTATIONS, CONDITIONS AND WARRANTIES WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR COMPANY’S USE OF THE SERVICES, THIS WEBSITE, THESE TERMS AND THE AGREEMENT. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO COMPANY. IN SUCH EVENT, OLONO’S WARRANTIES, CONDITIONS AND REPRESENTATIONS WITH RESPECT TO THE SERVICES, THIS WEBSITE, THESE TERMS AND THE AGREEMENT WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
10. Limitation of Liability
10.1 EXCEPT FOR OLONO’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR OLONO’S BREACH OF SECTION 5 (CONFIDENTIALITY), OLONO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS ASSUME NO RESPONSIBILITY WITH RESPECT TO COMPANY’S OR ITS AUTHORIZED USERS’ USE OF THE SERVICES AND WILL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, LOSS OF PROFITS, AND LOST REVENUE, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT OLONO IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR OLONO’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR OLONO’S BREACH OF SECTION 5 (CONFIDENTIALITY), OLONO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY OLONO FROM COMPANY FOR THE SERVICES DURING THE 12-MONTH PERIOD BEFORE THE CLAIM OR CAUSE OF ACTION AROSE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
10.2 EXCEPT FOR BREACH OF SECTION 5 (CONFIDENTIALITY), COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, LOSS OF PROFITS, AND LOST REVENUE, WHETHER SUCH DAMAGES ARE ALL ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT COMPANY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR COMPANY’S BREACH OF SECTION 5 (CONFIDENTIALITY), COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY PAID TO OLONO FROM COMPANY FOR THE SERVICES DURING THE 12-MONTH PERIOD BEFORE THE CLAIM OR CAUSE OF ACTION AROSE, MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
10.3 IN ADDITION, COMPANY SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES, THIS WEBSITE, THESE TERMS AND THE AGREEMENT MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
10.4 SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO COMPANY. IN SUCH EVENT, THE LIABILITY OF OLONO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FOR SUCH DAMAGES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
11. Indemnification Obligations
11.1 Company will, at its own expense, indemnify, defend and hold harmless Olono, its officers, directors, employees, affiliates, agents, contractors, and its attorneys (collectively the “Olono Indemnified Parties”) from and against any claims, actions, liabilities, damages, costs or expenses, including reasonable attorneys’ fees and costs (collectively “Claim Costs”) incurred in defending against or settling third party claims (“Claims”) based on or arising as a result of: (a) Company’s breach of any of these Terms, the Agreement or use by Company or any third party (authorized, permitted or enabled by Company) of the Services, except to the extent the foregoing directly result from Olono’s own gross negligence, willful misconduct or fraud; and/or (b) Olono’s use of, access to or connection with the Data Sources from Third Party Applications authorized by Company hereunder in the performance of the Services.
11.2 Olono will, at its own expense, indemnify, defend and hold harmless Company, its officers, directors, employees, affiliates, agents, contractors, and its attorneys (collectively the “Company Indemnified Parties”) from and against any claims, actions, liabilities, damages, costs or expenses, including reasonable attorneys’ fees and costs incurred in defending against or settling third party Claims that any Services and/or Olono Materials infringe on or misappropriate any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy or contractual rights. The indemnification obligations and rights of Secition 11 survive any expiration or termination of this Agreement.
11.3 In the event a Claim arises, the party seeking indemnification (“Indemnified Party”) will: (a) promptly notify the other party (“Indemnifying Party”) of its receipt of notice of the Claim and provide the Indemnifying Party with all documents and material in its possession that are reasonably relevant to the Claim; (b) give the Indemnifying Party the right to assume sole responsibility for defense of the Claim, including but not limited to choice of counsel and settlement negotiations/decisions; and (c) give the necessary authorization, information and full cooperation and assistance to the Indemnifying Party (at the Indemnifying Party’s expense) for the sole defense of same. The Indemnified Party will not settle any indemnified Claim over which the Indemnifying Party has not been afforded the opportunity to assume the defense or without the Indemnifying Party’s prior written approval, which approval will not be unreasonably withheld. The Indemnifying Party will control the settlement of all Claims over which it has assumed the defense; provided, however, that the Indemnifying Party will not conclude any settlement which requires any action or forbearance from action by the Indemnified Party, or admission of guilt or liability, or any payment by the Indemnified Party, without the prior written approval of the Indemnified Party. The Indemnified Party may participate in the defense of the Claim, at its expense, with counsel of its choice.
12.1 Governing Law; Jurisdiction. The validity and construction of these Terms and the Agreement and any dispute arising out of or relating to these Terms and the Agreement will be governed by the laws of the State of Texas excluding rules as to choice and conflict of law. Each party consents to the exclusive jurisdiction and venue of the State and Federal Courts for Travis County, Texas; provided, however, that an action for injunctive relief may be filed in a jurisdiction where the actions or party to be enjoined is located. The parties hereby exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods. Company agrees to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement.
12.2 Force Majeure. Except with respect to any payment to be made to Olono hereunder, neither party will be liable for any failure, deficiency or delay in the performance of its obligations under this Agreement due to any force majeure, which will include but not be limited to any storm, flood, fire, aircraft damage, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, Government act or administrative delay, equipment failure or non-delivery, inability to obtain materials or any cause or matter whatsoever not within the reasonable control of such party. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement.
12.3 Independent Contractors. The parties are independent contractors. Nothing contained herein or done pursuant to this Agreement will constitute either party the agent of the other party for any purpose or in any sense whatsoever, or constitute the parties as partners or joint venturers.
12.4 Assignment. Company may not assign any of its rights or obligations under this Agreement without the prior written consent of Olono (not to be unreasonably withheld). Any attempt by Company to assign this Agreement without prior written consent from Olono will be deemed null and void. Olono may assign or transfer this Agreement, without Company’s consent. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties, their respective successors and permitted assigns.
12.5 No Waiver. The waiver of any provision of these Terms or the Agreement must be in writing signed by the party to be charged. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of this Agreement will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
12.6 Severability. If, for any reason, a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
12.7 Notices. All notices to Company will be sent to the email address of the primary contact identified by Company in the Order or (when available) in Company’s account portal and will be effective upon dispatch. Company is responsible for maintaining current contact details of Company’s primary contact with Olono. All notices to Olono will be in writing and will be deemed given when personally delivered, or three days after being sent by overnight courier, prepaid certified or registered mail, to the following address (or such other address as Olono designates through notice to Company as provided herein):
Attention: Customer Success
901 W. 9th St., Suite 111
Austin, TX 78703
12.8 Absence of Third-Party Beneficiary Rights. No provision of this Agreement is intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any third party, affiliate or subsidiary, and all provisions hereto will be personal solely between the parties hereto.
12.9 Entire Agreement. This Agreement supersedes all proposals, quotations, oral or written, any letters of intent, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. Other than as set forth in these Terms (including, without limitation Section 1.2 above), (a) no changes or modifications are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties, and (b) only an officer of Olono is authorized to modify this Agreement or to make any warranty, representation or promise on behalf of Olono. The section headings and titles in these Terms and this Agreement are for convenience only and have no legal or contractual effect. These Terms and this Agreement will be interpreted without application of any strict construction in favor of or against Company or Olono.