1. Scope. These Terms and Conditions shall apply to Customer’s use of Olive’s services and products (“Services”) identified in one or more ordering documents signed by the parties, including any exhibits thereto (each an “Order”). Customer’s execution of an Order referencing these Terms and Conditions shall be deemed Customer’s agreement to these Terms and Conditions. These Terms and Conditions and all Orders (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Services and shall govern over any different or additional terms of any purchase order and no terms included in any such purchase order shall apply to the Services. In the event of a conflict between these Terms and Conditions and a Pricing Exhibit, the terms of the Pricing Exhibit shall prevail with respect to such conflicting terms. All capitalized terms not defined herein shall have the meanings attributed to such terms in the Order.
2. Conversion Services. During the term set forth in an Order, Olive will convert Customer’s print/film/digital materials (“Customer Materials”) into XML editions of print, film or non-XML digital materials (“XML Editions”, and the “Conversion Services” respectively). Such Conversion Services shall be provided pursuant to the requirements and procedures to be set forth in an Order to be mutually agreed between the Parties.
3. Hosting Services. Following conversion of Customer Materials into XML Editions, and should Customer contract hosting services from Olive, Olive will host such XML Editions for access over the Internet via Olive’s application, designated for downloading from the AppStore to the iOS-based iPad and/or on Olive’s Dynamic Newsstand (ODN), Olive’s Mobile Viewer and Olive’s Mobile Archive, which are cross platform online viewers meant to work on tablet operating systems with a built in HTML5 capable browser (collectively, the “Hosting Services”). Olive shall make commercially reasonable efforts to ensure that the XML Editions will be accessible and functional twenty-four (24) hours per day, seven (7) days per week. Scheduled System Maintenance and Product Releases will occur on Monday, Tuesday, or Wednesday between 4:00 PM EST and 10:00 PM EST. All reasonable efforts will be made to minimize any downtime resulting from Scheduled System Maintenance and Product Releases. Emergency maintenance may be required at other times in the event of system failure. Olive will use commercially reasonable efforts to notify customer in advance of any emergency maintenance event and will promptly remedy any system failure and restore the Hosted Site and the Publisher Content, including all current and archived Electronic Editions except for Scheduled System Maintenance. The foregoing notwithstanding, Customer acknowledges and agrees that the Hosting Services may be inaccessible or in operable at any time and for any reason, including without limitation due to equipment malfunctions, unscheduled maintenance or repairs, or causes that are beyond Olive’s reasonable control or not reasonably foreseeable by Olive, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. If Customer’s XML Edition becomes inaccessible to users or is not fully functional, other than due to scheduled maintenance, Olive shall have qualified personnel respond and endeavor to remedy such unavailability or failure of functionality as soon as reasonably possible.
4. Content Marketing and Distribution Services. Should Customer request in an Order to receive content marketing and distribution services from Olive, the additional terms and conditions contained in Exhibit A hereto shall apply as well.
5. National Advertising Placement Services. Should Customer request in an Order to receive national advertising placement services to the XML Editions of the Customer Materials from Olive, the additional terms and conditions contained in Exhibit B hereto shall apply as well.
6. Customer Representations and Warranties.
6.1. Customer warrants and represents to Olive that Customer possesses all rights required to lawfully provide Customer Materials to Olive and allow Olive to perform the Services in connection therewith, and further warrants and represents that Customer Materials and/or the display of and access to such materials and/or the use of any Internet Address provided to Olive for such purpose do not infringe upon, misappropriate, or otherwise violate any intellectual property, proprietary, privacy or other rights of any third parties.
6.2. Without derogating from any of Olive’s rights and remedies under the Agreement and/or under law, Olive will be entitled to immediately discontinue the Services or any part thereof in the event of any alleged infringement, misappropriation or violation of any rights of any third parties in connection with the Customer Materials.
6.3. Customer acknowledges and agrees that Olive has no obligation to review any of the contents of Customer Materials provided to Olive for the inaccuracy or completeness, or for the potential violation of any third party rights, and/or to check or monitor any such contents for any of the foregoing before or during any hosting thereof, and Customer further acknowledges and agrees that Customer bears entire responsibility and liability in connection with such contents and/or their display.
6.4. Customer acknowledges and agrees that all XML Editions of Customer Materials produced by Olive shall carry a “Powered-by Olive” logo. Customer shall not, and shall not permit any third party, to remove and/or alter said logo.
7.1. During the term of the Agreement, Customer will pay Olive for the Services a monthly fee pursuant to the prices set forth in an Order.
7.2. All prices and fees indicated in an Order are net and exclusive of any taxes (including without limitation any Value Added Tax or other sales tax), customs, tariffs or other charges or fees. Any such amounts levied, whether withheld at source or otherwise, will be added to such prices and fees and are borne exclusively by Customer.
7.3. Olive will invoice Customer at the beginning of each month for the Services provided to Customer during the previous month. Payment will be due within 30 days from the date of invoice. For avoidance of doubt, should Customers payment be received via credit card, a fee of 5% will be added to such payment.
7.4. Prior to the renewal of the term of any Order as set forth in Section 9.1 below, Olive shall review the pricing for Hosting Services based on Customer’s data storage, bandwidth usage and price increases assessed by the third-party data center. In the event of an increased usage of Hosting Services by the Customer, the fees for such services shall be increased accordingly, following thirty (30) days’ prior written notice to the Customer. Notwithstanding, Customer will have the option to have Olive reduce its data storage to 10% below its current tier level, as set forth in the Order, by removing the oldest Customer data; Customer may elect to have the data permanently removed or placed on removable storage and shipped to Customer’s location. Customer will be billed at the then current labor, material and shipping rates.
8. Term and Termination.
8.1. The Agreement shall commence as of the date set forth in the Order and, unless earlier terminated as set forth below, shall remain in effect through the end of the term stated in the Order (the “Initial Term”). After the Initial Term, the Agreement shall be automatically renewed for additional terms equal to the Initial Term, unless one Party notifies the other Party in writing of its intent not to renew the Agreement, at least thirty (30) days prior to the end of the then current term.
8.2. Either Party may terminate the Agreement if the other Party breaches any material term or condition of the Agreement and such breach is not remedied within thirty (30) days after receiving written notice thereof. Notwithstanding the foregoing, Olive may immediately, by written notice to Customer, suspend or terminate the Agreement and the Services provided hereunder if Customer fails to make any timely payment of fees owed to Olive or in case of breach of any of Customer’s representations and warranties under the Agreement, including without limitation those representations and warranties under Section 4 herein.
8.3. Either Party shall have the right to immediately terminate the Agreement, upon written notice, in the event the other Party files a petition in bankruptcy or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or discontinues its business or has a receiver appointed for its business and such receiver is not discharged within one hundred eighty (180) days.
8.4. For removal of doubt, termination for any reason under this Section 9 shall be without prejudice to Customer’s obligation to pay Olive for any and all Services rendered prior to such termination.
9. License to use Customer Materials; Rights to Customer Materials.
9.1. Customer hereby grants Olive, and Olive hereby accepts, a royalty-free, non-exclusive license to use any copyrighted materials and any name, logo, trade dress, trademark or service mark provided to Olive by Customer, solely for the purpose of providing the Services.
9.2. Olive acknowledges that, as between Customer and Olive, Customer owns all rights, title and interest in the content of the Customer Materials, including without limitation, the content stored on any XML files created through the operation of Olive’s software, or being hosted on servers owned by Olive or its agents or contractors. Olive acknowledges that nothing in the Agreement shall be construed to convey to Olive (or its agents or contractors) any rights in any copyrighted material of Customer, including without limitation any XML Editions or any derivative(s) thereof.
10. Exclusion of Warranty. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE BEING PROVIDED ‘AS IS’. OLIVE EXPRESLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (EVEN IF ON NOTICE OF SUCH PURPOSE), NON-INFRINGEMENT, SATISFACTORY QUALITY, OR THAT THE SERVICESWILL BE UNINTERRUPTED OR ERROR FREE.
11. Limitation of Liability.
OLIVE SHALL NOT BE RESPONSIBLE FOR THE ACCURACY OR COMPLETENESS OF ANY MATERIALS PROVIDED TO OLIVE BY CUSTOMER, AND OLIVE SHALL NOT BE LIABLE TO CUSTOMEROR TO ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM OR ALLEGED TO HAVE RESULTED FROM ANY INACCURACY OR INCOMPLETENESS OF ANY CUSTOMER MATERIALS THAT HAVE BEEN CONVERTED AND/OR HOSTED BY OLIVE.
IN NO EVENT SHALL OLIVE OR ANYONE ON ITS BEHALF BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF ACTUAL OR ANTICIPATED REVENUE, BUSINESS, SAVINGS OR PROFITS, OR LOST DATA, INCONNECTION WITH THE AGREEMENT AND THE SERVICES TO BE PROVIDED HEREUNDER, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF OLIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL THE TOTAL LIABILITY OF OLIVE FOR ANY CLAIM UNDER ANY CAUSE OF ACTION IN CONNECTION WITH THE AGREEMENT AND THE SERVICES TO BE PROVIDED HEREUNDER EXCEED THE FEES PAID TO OLIVE BY CUSTOMER UNDER THE AGREEMENT IN THE TWELVE MONTHS PRECEEDING SUCH CLAIM.
12.1. Olive hereby agrees to indemnify and hold harmless Customer and its officers, directors, employees and agents from and against any and all actual or threatened third party claims, losses, liabilities, damages, costs and expenses (including without limitation reasonable attorneys’ fees, expert witness fees and court costs) incurred by Customer with respect to any claim, action, suit or proceeding brought against Customer by a third party based up on a claim that the Services (apart from the Customer Materials) infringe the patent or copyright of a third party.
12.2. Customer hereby agrees to indemnify and hold harmless Olive and its officers, directors, employees and agents from and against any and all actual or threatened third party claims, losses, liabilities, damages, costs and expenses (including without limitation reasonable attorneys’ fees, expert witness fees and court costs) incurred by Olive with respect to any claim, action, suit or proceeding brought against Olive arising out or of in connection with a claim that the Customer Materials and/or the display of and access to such materials and/or the use of any Internet Address provided to Olive for such purpose infringe, misappropriate, or otherwise violate any intellectual property, proprietary, privacy or other right of any third party.
12.3. As a condition to the rights of indemnification in this Section 10, a Party seeking indemnification shall (i) promptly notify the indemnifying party in writing of the claim, suit or proceeding for which indemnification is sought; (ii) grant the indemnifying party exclusive control over the defense and/or settlement of any such claim, suit or proceeding, and reasonably cooperate with the indemnifying party in the defense or settlement of the claim, suitor proceeding; and (iii) make no compromising admission, offer to settle or the like in the context of any such claim, suit or proceeding. The indemnified party may participate in the defense at its own expense. The indemnifying party shall not, except with the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which does not include a complete and unconditional release for the indemnified party from all liability in respect to such claim, suit or proceeding.
13.1. The Agreement shall be governed by, interpreted and enforced in accordance with the laws of the State of Colorado, without regard to its conflict of law principles. The Parties agree that the United Nations Convention on the International Sales Goods shall not apply to the Agreement. All actions, suits or proceedings under or related to the Agreement shall be adjudicated in the courts serving Denver, Colorado and the Parties hereby irrevocably consent to the exclusive jurisdiction and venue of such courts.
13.2. All notices permitted or required hereunder shall be in writing and shall be sent by facsimile, or personal delivery at the facsimile number, or property address as either Party may specify. Notices sent to Olive shall be addressed to Olive Software, Inc., 3033 South Parker Road, Suite 502, Aurora, CO 80014 USA and to Customer’s address set forth in the Order, or to the address otherwise designated from time to time in writing by the Parties. Any notices provided will be deemed as being received on the date of transmission of facsimile, e-mail, or personal delivery unless given outside normal business hours in which case such notice shall be deemed as being given on the next business day.
13.3. The Agreement may not be assigned without the prior written consent of the other Party, except that Olive may assign the Agreement in connection with a merger, acquisition, sale of all or substantially all of Olive’s assets or other such corporate reorganization. The Agreement may be executed in counterparts and each taken together shall constitute one and the same document. The Agreement may only be amended by a written document executed by both parties.
13.4. The terms and provisions herein contained and in an Order constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous communications, oral or written, between the Parties hereto with respect to the subject matter hereof. The exchange of a fully executed Order by fax or electronic signature shall be sufficient to bind the parties to the Terms and Conditions of the Agreement and such Order.
13.5. Those rights and obligations hereunder, which by their language or their nature imply survivorship, shall survive expiration or termination of the Agreement. Without derogating from the generality of the foregoing, Sections 7, 9, 12, 13, and 14 herein shall survive any such expiration or termination.
13.6. If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, in valid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.
13.7. Neither party shall be liable for any delay in performing its obligations (except for payment obligations) hereunder if such delay is caused by factors beyond its control, including without limitation acts of God, war, riot, fire, explosion, flood, earthquake or technical failure beyond such Party’s reasonable control (“Force Majeure”). Subject to the party so delaying promptly notifying the other party in writing of the reasons for the delay (and the likely duration of the delay), the performance of such party’s obligations shall be suspended during the period of Force Majeure and such party shall be granted an extension of time for performance equal to the period of the delay. Either party may, if such delay continues for more than sixty (60) days terminate the Agreement forthwith upon giving notice in writing to the other in which event neither party shall be liable to the other by reason of such termination.
13.8. Nothing contained in the Agreement shall be construed to constitute the parties to be partners or joint-ventures with or agents for one another. Neither Party shall have the authority to, nor shall either, obligate or bind the other in any manner whatsoever.
Attachments to these Terms and Conditions include:
Exhibit A – Applicable and included if content marketing and distribution services are selected by Customer in the Order.
Exhibit B – Applicable and included if national advertising placement services are selected by Customer in the Order.
If Customer elects to receive content marketing and distribution services from Olive, the following terms and conditions shall apply. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Agreement.
The provisions of the Agreement shall continue to apply to the Parties’ activities hereunder except where expressly modified or added to herein. In any case of contradiction between the provisions of the Agreement and those of this Exhibit A, the provisions of the Exhibit A shall supersede and prevail.
1.1. Other than such restrictions and content exclusion rules as shall be specifically indicated in a separate Annex A-1 to be attached to an Order with respect to certain portions of Customer Material, Customer hereby grants, transfers and assigns to Olive a non-exclusive, world-wide license and right, by itself or with others, to commercialize the Customer Material and to reproduce, print, publish, publically display, distribute, syndicate and transmit the Customer Material to third parties, whether stand-alone or whether bundled together with material and contents of other Olive customers or other third parties, in such media, format, style, manner and advertisement, and at such price and other commercial terms, as Olive deems fit (the “License“).
1.2. The License shall include but not be limited to: (i) marketing and promoting the Customer Material or any part thereof; and/or (ii) distributing, reselling and licensing the Customer Material, in full segments of the print, film or other digital material or portions thereof (for example, certain articles of an issue and so forth) to Olive customers and/or to other third parties, directly and indirectly, through Olive’s third party sales and distribution channels. It is hereby clarified that in no event is Olive under any obligation, express or implied, to post or otherwise include or distribute any of the Customer Material.
1.3. Customer hereby represents and warrants that it is the true and lawful owner of the Customer Material and that it has, and will maintain for the duration of the License, the full right, power and authority to grant the License and there are no restrictions, including third party restrictions, in connection with the grant thereto or in connection with the use by Olive of such Customer Materials under the License.
1.4. Customer grants Olive a worldwide, irrevocable, right and license to use Customer’s trademarks and branding (the “Customer Marks”) for the purpose of marketing, promotion, distribution, resale or licensing of the Customer Material and further agrees that Olive may identify Customer as its client in any promotional material and in its website.
2.1. In consideration of the License granted to Olive under Section 2, Customer shall be entitled to a certain percentage of the revenues actually collected by Olive during each calendar month less any direct costs, from Customer Material distributed to third parties, all as set forth in the Pricing Exhibit. Olive reserves the right to make changes to the percentage of revenues and direct costs from time to time. In the event of such change, Olive shall provide Customer with a 60 day prior written notice thereof.
2.2. Olive shall provide Customer, on a quarterly basis, a report setting forth the aforesaid information, aggregated on a monthly basis, together with amounts owed to Customer for such quarterly period.
2.3. Within 30 days following receipt by Customer of Olive’s quarterly report, Customer shall provide Olive with a written report containing any discrepancies found, to the extent that its records show differently, in which case Olive and Customer shall cooperate in good faith to resolve any such discrepancies. In the event that Olive does not receive any report of discrepancies within 30 days of providing Customer with the quarterly report then Customer shall be deemed to have accepted the quarterly report.
2.4. Payment to Customer will be due within 30 days from the date of Olive’s quarterly report. To reduce administrative costs, the parties agree that Olive shall not be required to make any payment to Customer until such time that the amount owed to Customer equals or exceeds US $250.
2.5. Olive shall be entitled to deduct and withhold from the relevant payment to Customer, such amounts as it is required to deduct and withhold with respect to such payment under applicable law unless Customer shall provide an exemption from tax withholding issued by the relevant tax authorities within the time frame prescribed by law. To the extent that amounts are so withheld by Olive and paid to the tax authorities, such withheld amounts shall be treated for all purposes of this Agreement as having been paid as part of the payment due hereunder.
2.6. Customer agrees to perform specific marketing activities as outlined in Annex A-3 to be attached to the Order at Customer’s sole cost and expense.
3.1. Unless stated otherwise in an Order, the term of the License contemplated hereunder is for a term of 1 year commencing as of the date set forth in the Order (the “License Term“). The License Term shall be automatically renewed each year for an additional 1 year term unless otherwise terminated by either party by giving the other party a 30 day written notice prior to the end of the License Term or of any subsequent renewal.
3.2. It is hereby clarified, to the extent that the term of an Order with respect to other services provided there under are terminated, the provisions of the Terms and Conditions to which this Exhibit A is a part of shall continue to apply to the License granted hereunder for the duration of the License Term.
If Customer elects to receive national advertising placement services from Olive, the following terms and conditions shall apply. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Agreement.
The provisions of the Agreement shall continue to apply to the Parties’ activities hereunder except where expressly modified or added to herein. In any case of contradiction between the provisions of the Agreement and those of this Exhibit B, the provisions of the Exhibit B shall supersede and prevail.
1. National Advertising Placement Services.
1.1. Customer acknowledges and agrees that Olive will make available for use in such XML Editions which shall be agreed upon between Olive and Customer, and specified in Annex B-1 to be attached to the Order, certain national advertising placement services to be agreed between Olive and Customer (“National Advertising Placement Services”), in accordance with Customer’s advertising guidelines (i.e. ‘blacklist’ advertisers due to local ad sales conflicts), including, but not limited to:
a. Pre-print insert and insertion advertisements, sold generally into placements between sections of such XML Editions by a third party sales representative; and
b. Digital display advertisements, sold and placed via an automated marketplace (programmatic) system in the frame or within such XML Editions; and
2.1. In consideration for the right to provide advertising placement services facilitated by Olive in the framework of Customer’s XML Editions, Customer shall be entitled to a certain percentage of the amounts actually received by Olive’s 3rd Party Sales Representative for all Pre-Print Insert and Insertion Advertisement campaigns and by Olive Software for any Digital Display Advertisement campaigns during each calendar month from Advertising Placement Services provided through Customer’s XML Edition all as set forth in the Pricing Exhibit.
2.2. Olive or third party sales representative, in accordance with Section 2.1, shall provide Customer, on a monthly basis, with a report detailing the amounts owed to Customer for such period. Such report will include the associated payment to the Customer. For avoidance of doubt, should Customer have unpaid invoices that are 60 days or more past due, the payment shall be netted against such past due amounts.
3. Exclusion of Warranty.
Customer acknowledges that the third party services are being provided by third parties and not by Olive, and accordingly such services are provided by Olive on an ‘as is’ basis. Without derogating from the aforesaid, except as explicitly agreed in each specific Annex B-1, Olive expressly disclaims any and all warranties, whether express or implied, including without limitation any warranty or condition of merchantability, fitness or suitability for any particular purpose (even if on notice of such purpose), non-infringement, satisfactory quality, or that the third party services will be uninterrupted or error free.