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. Customer Representations and Warranties.
3.1. 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.
3.2. 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.
3.3. 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, and Customer further acknowledges and agrees that Customer bears entire responsibility and liability in connection with such contents and/or their display.
4.1. 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.
4.2. 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.
4.3. 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.
5. Term and Termination.
5.1. 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.
5.2. 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.
5.3. 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.
5.4. 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.
6. License to use Customer Materials; Rights to Customer Materials.
6.1. 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.
6.2. 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.
7. 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.
8. 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.
9.1. 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.
9.2. 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.
9.3. 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.
10.1. 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.
10.2. 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.
10.3. 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.
10.4. 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.
10.5. 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.
10.6. 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.
10.7. 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.
10.8. 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.