This Agreement is between Customer and OLY.AI Inc. (“OLY.AI”) (collectively, the “Parties” and each a “Party”). This Agreement governs Customer’s use of the Service.
BY SUBSCRIBING FOR THE SERVICE OR BY USING OR ACCESSING THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH EACH AND EVERY PROVISION OF THIS AGREEMENT THEN CUSTOMER MAY NOT USE THE SERVICE. UNAUTHORIZED USE OF THE SERVICE IS STRICTLY PROHIBITED.
ARTICLE 1 – DEFINITIONS AND INTERPRETATION
1.1 Definitions
(a) In this Agreement, the following terms have the following meanings, and all other capitalized terms have the meaning set out elsewhere in this Agreement:
1. “Agreement” means these terms and conditions together with all Subscription Details.
2. “API” means the application programming interface and any accompanying or related documentation, source code, executable applications and other materials made available by OLY.AI as part of the Service.
3. “Claim” means a claim, suit, action, complaint, demand, cause of action, proceeding or hearing.
4. “Confidential Information” means all non-public information, in any form and on any medium, disclosed by the Disclosing Party to the Receiving Party under this Agreement, regardless of the form of disclosure and whether the disclosure is marked as “confidential”.
5. “Customer” means the party subscribing to the Service for the benefit of Users.
6. “Data Source” means a source of data that is hosted or stored by Customer which the API can access, as set out in the Subscription Details.
7. “Disclosing Party” means the Party disclosing information to the other Party.
8. “License” means a non-exclusive, limited, non-sublicensable, non-transferable, revocable and restricted license.
9. “Loss” means a loss, liability, damages, cost, expense and disbursement, including reasonable attorneys’ fees and court costs.
10. “Receiving Party” means a Party receiving information from the Disclosing Party.
11. “Representatives” means a Party’s directors, officers, employees, agents, licensors, service providers, suppliers, and other representatives.
12. “Service” means the OLY.AI Inc.TM service which is used by the Customer to make it accessible to a User, and used by a User to use natural language queries to retrieve information from a Data Source.
13. “Subscription” has the meaning set out in Section 3.1(a).
14. “Subscription Details” means the details of a subscription signed by the Parties.
15. “Term” means the initial term and all renewal terms of this Agreement.
16. “User” means a customer of the Customer who is authorized by the Customer to use a Service.
17. “Widget” means a OLY.AI developed widget that interfaces with the Data Source, or with an application connected to the Data Source, that calls the API when a query is entered.
1.2 Interpretation
(a) In this Agreement: (i) a reference to “Agreement” and other similar terms refers to this Agreement as a whole, and not just to the particular provision in which those words appear, (ii) “including” means including without limitation, (iii) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions, (iv) a reference to a person includes an individual, partnership, association, trust, unincorporated organization, society or corporation, (v) a reference to a day, month, quarter, or year means a calendar day, month, quarter, or year, unless the context indicates otherwise and (vi) a reference to a statute includes a reference to such statute and to the regulations made pursuant to such statute, and all amendments made to the statute and in force, from time to time, and to any statute or regulation that may be passed which has the effect of supplementing or superseding the statute referred to or its regulations.
(b) Unless expressly stated otherwise in this Agreement, if there is any inconsistency or conflict between the documents that comprise this Agreement, the provisions of those documents will take precedence and govern in the following order of priority: (i) Subscription Details and (ii) the terms of this Agreement.
ARTICLE 2 – TERM
2.1 Term
(a) The initial term of this Agreement commences on the date OLY.AI provides Customer with a copy of the API, and will continue in full force and effect for the initial term set out in the Subscription Details, unless terminated earlier pursuant to this Agreement.
(b) Following the initial term set out in the Subscription Details, this Agreement will automatically renew for additional, consecutive twelve (12) month renewal terms, unless terminated earlier pursuant to this Agreement or unless either Party gives notice of non-renewal to the other Party by no later than sixty (60) days before the end of the initial term or the then-current renewal term or unless otherwise stated in the Subscription Details.
ARTICLE 3 – USE OF SERVICE
3.1 Subscription
(a) Subject to the provisions of this Agreement and Customer’s prompt payment of all applicable Fees, OLY.AI grants to Customer a License during the Term to make the Service available to the User, subject to the restrictions and requirements set forth in this Agreement and in the Subscription Details, solely for the purpose of translating a User’s question into a query that is run against the Data Source, whether using a Widget or not (the “Subscription”). Customer shall not use the API for any purpose that is not expressly permitted in this Agreement, including to run or have run queries on a Data Source that is not described in the Subscription Details.
3.2 Restrictions and Customer Responsibilities
(a) Customer and Users shall use the Service in accordance with the applicable documentation provided by OLY.AI.
(b) Customer shall work with OLY.AI to set up the initial communication with the Service (through the API or direct network-to- network communication using SSL).
(c) Customer shall not and shall not allow a User to:
1. use the Service except as expressly permitted by this Agreement;
2. alter, modify or change the API or the Service;
3. give or make available or permit the use of the Service or its functionality for the benefit of any other person other than a User, and with or without charge, except as expressly permitted by this Agreement;
4. attempt to gain unauthorized access to the Service or related systems;
copy, reproduce, translate, modify, enhance, or create derivative works from the Service;
5. alter, attempt to circumvent, destroy, obscure, or remove any proprietary codes or locks, digital rights management tools or security or control measures;
6. reverse engineer or otherwise access or use the Service to create a product or service using similar ideas, features, function or
7. permit, assist or encourage any other person to do any of the foregoing.
(d) Customer is solely responsible for its and its Representatives’ actions (including access to and use of the Service by a User) and the contents of transmissions made by Customer or Users through the Widget and the Service.
(e) Customer agrees to abide by all local and international laws and regulations applicable to Customer’s use of the Service and Widget and not to use the Service or Widget for illegal purposes.
3.3 Technical Support and Changes
(a) The Service may include limited, remote technical support for Customer if set out in the Subscription Details. Additional technical support may be available for additional fees.
(b) When using a third party product (including a Widget), support for the third party product (if any is available) is exclusively provided by the third party. Customer acknowledges that OLY.AI is not responsible for the operation, support or maintenance of any Widget.
(c) Customer agrees that OLY.AI may in its discretion change the Service from time to time without any notice or liability to Customer or to any other person as long as it does not materially deviate from the agreed upon terms in the Subscription Details.
3.4 Subcontractors
(a) OLY.AI may use subcontractors to provide the Service. OLY.AI is responsible and liable for the subcontractors as though the subcontractors were OLY’s own employees.
3.5 Queries
(a) Customer is solely responsible and liable for the transmission of queries sent to and calls to the API, and for data that Customer’s system retrieves from the Data Source. Customer agrees that OLY.AI is not liable for unauthorized access to the Data Source by a third party.
3.6 Widgets(
a) The API can interface with Widgets to present the User with a Widget to retrieve information from the Data Source. OLY.AI does not accept any responsibility or liability for any Widgets or their operation, including how they present any information that is returned from the call to the API.
(b) OLY will make available those Widgets (if any) that are set out in the Subscription Details. Any use of such Widget by Customer or a User is subject to the following MIT open source license terms that govern Customer’s use of such Widget:
3.6.1 MIT License for Widgets
Copyright (c) 2020 OLY.AI Inc.
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
ARTICLE 4 – AUTHORIZED USERS
4.1 User Restrictions
(a) Customer will only allow access and use the Service by authorized Users for whom Customer has paid Fees pursuant to the Subscription Details. Customer will ensure that Users use the Service only on behalf of the User and strictly in accordance with the restrictions and requirements set forth in this Agreement.
ARTICLE 5 – CUSTOMER DATA
5.1 Customer Data Ownership(a) As between OLY.AI and Customer, Customer owns all data, information or material in the Data Source.
5.2 Data Use by OLY.AI
(a) Customer acknowledges that the Service contains technologies that monitor, record and report to OLY.AI information regarding Users’ use of the Service and metadata, including but not limited to query statements used by Users. Customer agrees that OLY.AI may use that information for the purposes of system administration and for the purposes of development and improvement of the Service (and other products). OLY.AI may provide User statistical information such as usage, queries or traffic patterns in aggregate form to third parties, but such information will not include personally identifying information about the User’s personnel or information from the Data Source.(b) OLY.AI stores limited data (such as the database object model and unique data elements) that is identified in the Data Source as required for creating proper query language for the Data Source. Such data from the Data Source is stored and accessed using the Customer’s unique customer ID and credentials to ensure such data from the Data Source is not co-mingled with other customer data. Such data is refreshed by OLY.AI from time to time.
5.3 Customer Obligations
(a) Customer shall comply with all obligations imposed by law that are applicable to Data Source.
(b) Customer shall indemnify, defend and hold OLY.AI harmless from and against any third party Claims resulting from (i) Customer’s or a User’s use of the Service to query and return results from the Data Source or (ii) a User using the Service, including acting on the results of a query, whether such Claim is based on loss of, lack of consent to use, or misuse of, the User’s data.
(c) Customer shall obtain from each User its informed consent to the collection, retention, use and disclosure of their personally identifiable information as may be included as part of the Data Source.
(d) Customer (or a User) shall be responsible for maintaining an archive or back-up copy of the Data Source, and OLY.AI shall have no liability for any loss of data from the Data Source, whether caused by OLY.AI, Customer or any third party service provider, or by the Service or a Widget.
(e) Customer (or a User) is solely responsible and liable for, and bears all risks and liabilities associated with, the Data Source, including the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of the Data Source.
(f) Customer agrees not to use or permit the use of the Service for any application where a failure of the Service could result in death, serious injury, environmental damage or property damage. Examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation and aviation. Customer acknowledges that OLY.AI makes no assurances that the Service are suitable for any high-risk use.(g) Customer shall not violate any explicit rate limitations on calling or otherwise using the API that are set out in the Subscription Details.
5.4 Disclaimers
(a) OLY makes no representation, warranty, condition or guarantee of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, regarding the Data Source or the results returned from accessing the Data Source, and OLY.AI disclaims any and all responsibility and liability for the Data Source to the fullest extent permitted by law. OLY.AI assumes no responsibility for Customer’s or a User’s deletion, correction, destruction, loss or infringement of any data in the Data Source.
(b) The Service is not a substitute for Customer’s or a User’s application of its professional judgment when interpreting any data from the Data Source.
ARTICLE 6 – FEES
6.1 Subscription(a)Customer shall pay OLY.AI the fees and charges for the Service for the selected License model (the “Fees”) specified in the Subscription Details and as otherwise set out in this Agreement. Additional Fees may apply, as set out in the Subscription Details, for each additional Data Source, User or any other agreed upon terms. OLY.AI may use a third party payment provider or system to collect the Fees in which case Customer’s payment information may be stored by such third party. Payment obligations are not cancellable and any advance payments are non-refundable. All Fees and applicable Taxes are payable in the currency specified in the applicable invoice, provided that if no currency is specified Fees and applicable Taxes are payable in United States currency.
6.2 Taxes
(a) Fees are exclusive of all applicable federal, state, provincial and municipal sales, use, value-added, property, excise, import, foreign, withholding and other governmental taxes, duties, charges, levies, fees, tariffs and assessments (collectively the “Taxes”). Customer is solely responsible and liable for, and will pay and remit, all Taxes (other than corporate income taxes payable by OLY.AI) associated with, based on or due as a result of Fees, and all related interest, penalties and expenses.
6.3 Fee Changes
(a) OLY.AI may change the amount of the Fees in the manner set out in the Subscription Details.
ARTICLE 7 – INTELLECTUAL PROPERTY OWNERSHIP
7.1 Reservation of Rights
(a) Customer acknowledges and agrees that, as between the Parties, OLY.AI and its licensors will at all times own and retain all right, title and interest (including all intellectual property rights) throughout the world in and to the Service and software (including the API) used to provide the Service.
(b) The Service is licensed, not sold, to Customer. Except for the limited Licenses expressly set forth in this Agreement, Customer and its personnel will not acquire any right, title or interest in or to the Service or the API or any other OLY.AI software. All rights not expressly granted under this Agreement are reserved by OLY.
7.2 Feedback
(a) If Customer or its Representatives give OLY.AI feedback about the Service (including any ideas or suggestions for enhancements or improvements) (collectively the “Feedback”), Customer agrees that OLY.AI and its suppliers and OLY’s successors, assigns and licensees are granted a non-exclusive, perpetual, irrevocable, sublicensable (to any tier of sublicensee), transferable, royalty-free license to use and commercialize the Feedback in any way and for any purpose without providing any compensation or recognition to Customer, its Representatives or to any other person.7.3 Trademarks(a) OLY.AITM, OLY.AI Inc.TM and related logos and marks are the registered or unregistered trademarks of OLY and its licensors. Customer does not have any license or right to use any of OLY.AI’s trademarks without written permission. All rights are reserved by OLY.AI Inc.. Other third party marks are the trademarks of the applicable third party.
ARTICLE 8 – CUSTOMER’S OBLIGATIONS
8.1 Customer Representations and Warranties
(a) Customer represents and warrants to OLY.AI that Customer has the right, power, capacity and authority to enter into and perform its obligations and exercise its rights under this Agreement.
8.2 Unauthorized Use(a) Customer shall promptly notify OLY.AI if Customer knows of or suspects any unauthorized access to or use of the Service.
ARTICLE 9 – TERMINATION
9.1 Termination
(a) Despite any other provision of this Agreement, either Party may terminate this Agreement for cause effective immediately upon delivery of notice of termination to the other Party (the breaching Party) if the breaching Party breaches this Agreement (including failing to make a required payment on time) and such breaching Party has not remedied the breach within thirty (30) days after receipt of a breach notice from the non-breaching Party. The non-breaching Party, in any such breach notice, shall identify the breach and state the non-breaching Party’s intention to terminate this Agreement if the breach is not remedied within the cure period.
(b) OLY may, in its sole discretion, terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or if a receiver, receiver-manager, liquidator or trustee in bankruptcy is appointed in respect of all or substantially all of Customer’s business.
9.2 Discontinuation of Service
(a) Despite any other provision of this Agreement, OLY.AI may, in its sole discretion, terminate a Service at any time after providing 120 days of written notice to Customer if OLY.AI decides in its discretion to cease making the Service generally commercially available. Upon any such termination OLY.AI will refund to Customer the unused portion of any pre-paid Fees.
9.3 Consequences of Expiration or Termination(a) If this Agreement expires or terminates for any reason then (i) all Licenses granted by OLY.AI under this Agreement will terminate immediately and automatically, without any notice to Customer, (ii) Customer and all Users will immediately cease using the Service, (iii) each Party will remain responsible and liable for all obligations and liabilities arising prior to the termination or expiration of this Agreement and (iv) Customer will promptly pay OLY.AI all outstanding Fees and Taxes.
9.4 Survival
(a) Despite any other provision of this Agreement, if this Agreement expires or is terminated for any reason, the following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive the expiration or termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable: Sections 1, 5, 6, 7, 9, 10, 11, 13, 14 and 15.
ARTICLE 10 – LIMITED WARRANTY AND DISCLAIMERS
10.1 Limited Warranty
(a) Subject to the other provisions in this Article 10, OLY.AI warrants that the Service will perform in accordance with the applicable online documentation if the Service is used as intended. If the Service does not perform in accordance with the foregoing warranty then Customer’s sole and exclusive remedies, and OLY’s sole obligations to Customer, are to, at OLY’s option: (i) modify the Service so that it substantially conforms with the applicable online documentation, (ii) if the documentation is in error, modify the documentation to accurately reflect the actual operation of the Service or (iii) terminate this Agreement and refund to Customer the Fees (if any) paid by Customer in respect of the Service during the three (3) months prior to the termination date and any prepaid but then-unused Fees.
10.2 Disclaimer
THE WARRANTY SET OUT IN SECTION 10.1(a) IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES. EXCEPT FOR THE WARRANTY SET OUT IN SECTION 10.1(a), THE SERVICE IS PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANT ABILITY , NON-INFRINGEMENT , PERFORMANCE, QUALITY, RESULTS, RESULTS RETURNED FROM THE DATA SOURCE, SUITABILITY, ERROR-FREE OPERATION, AVAILABILITY, UNINTERRUPTED USE OR ACCESS, TIMELINESS, TITLE OR WORKMANLIKE EFFORT, ALL OF WHICH ARE HEREBY DISCLAIMED BY OLY.AI TO THE FULLEST EXTENT PERMITTED BY LAW. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR THE SELECTION AND USE OF THE SERVICE TO ACHIEVE INTENDED RESULTS.(b) Customer and Users use the Service at Customer’s and Users’ own risk.(c) The Service may be affected by numerous factors beyond OLY.AI’s control, and as a result the Service may not be continuous or uninterrupted. Customer acknowledges that the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications, and OLY.AI is not responsible or liable for any delays, delivery failures or other Loss resulting from such problems.
ARTICLE 11 – INDEMNITIES
11.1 Indemnity
(a) During and after the Term, Customer shall defend, indemnify and hold harmless OLY.AI and OLY’s Representatives from and against any and all third party Claims (including from a Customer Representative) and associated Losses arising from, connected with or relating to:
1. the use of the Service by Customer or a User, the results obtained therefrom, the results returned from the Data Source, or the use by the User of results obtained through the use of the Service, provided that the foregoing obligations do not apply to an intellectual property Claim for which OLY.AI is obligated to defend or indemnify Customer pursuant to Article 12; and
2. any negligence, misconduct, or breach of this Agreement by Customer or any person for whom Customer is responsible pursuant to this Agreement or at law.
(b) OLY shall: (i) give Customer prompt notice of the indemnified Claim, (ii) grant control of the defense and settlement of the indemnified Claim to Customer (provided that a Claim will not be settled by Customer without the prior written consent of OLY.AI, which consent will not be unreasonably withheld, conditioned or delayed) and (iii) reasonably co-operate with Customer regarding the defence and settlement of the indemnified Claim. OLY.AI and OLY’s Representatives retain the right to participate in the defense of and settlement negotiations relating to any Claim with counsel of its own selection at its sole cost and expense.
ARTICLE 12 – INTELLECTUAL PROPERTY INDEMNITY
12.1 Defense and Indemnity
(a) Subject to Sections 12.2(a) and 12.3(a), OLY.AI shall defend Customer or a User against a Claim brought against Customer or a User by an unaffiliated third party in a court of competent jurisdiction in Canada or in the United States of America to the extent that the Claim is based on an allegation that Customer’s or a User’s use of the Service in accordance with this Agreement infringes or misappropriates a patent or copyright under the laws of Canada or in the United States of America that is owned by such unaffiliated third party, and OLY.AI shall indemnify Customer against any final judgments rendered in favour of such third party.
12.2 Remedies
(a) Subject to Section 12.3(a), if a third party Claim as set out in Section 12.1(a) prohibits Customer or a User from continued use of the Service in accordance with this Agreement, or if at any time the Service is, or in OLY.AI’s opinion is likely to become, the subject of a third party allegation or Claim of infringement or misappropriation of third party intellectual property rights, then OLY.AI shall in its discretion either: (i) obtain for Customer or the User the right to use the Service in accordance with this Agreement, (ii) modify the Service to make them non-infringing or (iii) terminate this Agreement and refund to Customer the unused portion of any pre-paid Fees.
12.3 Exclusions and Limitations
(a) OLY’s defense and indemnification obligations in Section 12.1(a) are conditioned on and subject to Customer: (i) promptly notifying OLY.AI of such third party Claim, (ii) giving OLY.AI sole control of the defense and settlement of each such third party Claim and (iii) upon OLY.AI’s request, fully cooperating with OLY.AI regarding the defense and settlement of the third party Claim (including by obtaining cooperation from the User).
(b) OLY.AI’s defense and indemnification obligations in Section 12.1(a) do not apply to any actual or alleged infringement or misappropriation arising from, connected with, or relating to: (i) the use of the Service in combination with any software (including a Widget), services, technology, hardware or other materials not provided by OLY.AI, (ii) any use of the Service in breach of this Agreement or (iii) any wrongful act or omission by Customer or User or any breach of this Agreement by Customer.
(c) DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT OF OLY’S OBLIGATIONS AND LIABILITIES PURSUANT TO THIS ARTICLE 12 (INCLUDING ALL LEGAL FEES PAID BY OLY TO DEFEND AGAINST ANY THIRD PARTY CLAIM AND ALL AMOUNTS PAID BY OLY TO SETTLE A THIRD PARTY CLAIM OR TO SATISFY ANY OBLIGATIONS OR LIABILITIES RESULTING FROM ANY FINAL JUDGMENT) EVER EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO OLY PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH EITHER PARTY FIRST RECEIVES WRITTEN NOTICE OF AN ACTUAL OR REASONABLY ANTICIPATED THIRD PARTY CLAIM.
12.4 Exclusivity
(a) This Article 12 states Customer’s sole and exclusive remedies, and OLY’s entire responsibility and liability, for any Claims arising from, connected with, or relating to any actual or alleged infringement or misappropriation of any intellectual property rights of any third party.
ARTICLE 13 – LIABILITY EXCLUSIONS AND LIMITATIONS
13.1 Liability Exclusions and Limitations
(a) EACH PARTY’S AND ITS REPRESENTATIVES’ LIABILITY, JOINTLY AND SEVERALLY, TO THE OTHER PARTY AND THE OTHER PARTY’S REPRESENTATIVES OR ANY OTHER PERSON UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE SERVICE) IS LIMITED TO DIRECT DAMAGES SUFFERED BY THE OTHER PARTY ONLY, AND IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR SUCH PARTY’S REPRESENTATIVES, JOINTLY OR SEVERALLY, BE LIABLE TO THE OTHER PARTY OR THE OTHER PARTY’S REPRESENTATIVES OR OTHER PERSON UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE OF ANY NATURE OR KIND WHATSOEVER, INCLUDING LOSS OF DATA, INFORMATION, BUSINESS, PROFITS, USE, OR ECONOMIC LOSS.
(b) WITHOUT LIMITING THE GENERALITY OF SECTION 13.1(a), IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE LIABILITY OF OLY OR OLY’S REPRESENTATIVES, JOINTLY AND SEVERALLY, TO CUSTOMER, CUSTOMER’S REPRESENTATIVES, USERS OR ANY OTHER PERSON, JOINTLY AND SEVERALLY, UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT, EVER EXCEED THE TOTAL AMOUNT OF FEES FOR THE SERVICE THAT WERE PAID BY CUSTOMER TO OLY DURING THE THREE (3) MONTHS PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE.
(c) This Section 13.1 applies to Loss under any theory of liability (including contract, tort, strict liability, statutory liability, or any other theory of law or equity or under any statute or regulation), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by the liable Party or the liable Party’s Representatives, and even if a Party has been advised of the possibility of the potential Loss being incurred.
ARTICLE 14 – CONFIDENTIALITY
14.1 Scope of Confidential Information
(a) For greater certainty: (i) all non-public data in the Data Source is the Confidential Information of Customer and (ii) all non-public information concerning the Service and all related information and data and software and technology (including the API), any service account information and integrator keys provided to Customer and the terms of this Agreement are all the Confidential Information of OLY.AI. All Fees and pricing terms are the Confidential Information of OLY.AI.
(b) Information will not be considered to be Confidential Information to the extent that the information: (i) is already known to the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party, (ii) is provided to the Receiving Party from an independent third party free of any restriction and without breach of this Agreement, breach of any agreement with such third party or breach of any other confidentiality obligation, (iii) becomes publicly available through no wrongful act of the Receiving Party or (iv) is independently developed by the Receiving Party without reference to or access to any of the Disclosing Party’s Confidential Information.
14.2 Duty to Protect
(a) Subject to Section 14.3(a), the Receiving Party shall: (i) use the Disclosing Party’s Confidential Information only during the Term and only to the extent necessary to perform the Receiving Party’s obligations and exercise the Receiving Party’s rights under this Agreement, (ii) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel, and then only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, (iii) both during and after the Term for so long as the applicable Disclosing Party’s Confidential Information does not fall into one of the categories set out in Section 14.1
(b), maintain the strict confidentiality of the Disclosing Party’s Confidential Information using the same degree of care as the Receiving Party affords to its own confidential information of a similar nature which it desires not to be published or disseminated, and in no event less than reasonable care using technical, administrative and physical measures to prevent the unauthorized use or disclosure of the Disclosing Party’s Confidential Information and (iv) ensure that the Receiving Party’s personnel and other persons to whom the Receiving Party discloses the Disclosing Party’s Confidential Information strictly comply with the requirements and restrictions set forth in items (i)-(iii) above prior to receiving any of the Disclosing Party’s Confidential Information.
14.3 Permitted Disclosures
(a) Despite the restrictions set out in Section 14.2(a), the Receiving Party may disclose the Disclosing Party’s Confidential Information: (i) to the extent such disclosure is required by a valid order of a court or governmental body of competent jurisdiction and authority or by applicable law, provided that before making any such disclosure the Receiving Party gives reasonable notice to the Disclosing Party of the potential disclosure and reasonably assists the Disclosing Party in seeking a protective order preventing or limiting the potential disclosure or use of the Disclosing Party’s Confidential Information, unless such prior disclosure is prohibited by the order or applicable law and (ii) to the Receiving Party’s legal, accounting and tax advisors to the extent that such disclosure is required for a bona fide legal, accounting or tax purpose.
14.4 Return and Destruction of Confidential Information
Upon expiration or termination of this Agreement or at any time upon the Disclosing Party’s request, the Receiving Party shall: (i) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all of the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control, and the Receiving Party shall delete all of the Disclosing Party’s Confidential Information from all of the Receiving Party’s computer systems, retrieval systems and databases, unless this Agreement expressly authorizes the Receiving Party to retain the Confidential Information and (ii) request that all persons to whom the Receiving Party has provided any of the Disclosing Party’s Confidential Information comply with this Section; and if requested by the Disclosing Party, the Receiving Party shall deliver to the Disclosing Party a declaration signed by a senior officer of the Receiving Party certifying that the Receiving Party and its personnel have complied with this Section.
ARTICLE 15 – GENERAL TERMS
15.1 General
(a) OLY.AI may reference Customer in a published list or directory of OLY.AI’s customers. Upon request by OLY.AI, Customer will provide OLY.AI with Customer’s trademark or logo for use in those lists and directories, provided OLY.AI’s use of such trademarks or logos will be subject to any reasonable and royalty-free trademark license terms provided by Customer.
(b) OLY.AI may deliver notices to Customer by email, facsimile, or delivery to Customer’s addresses specified in the most current Subscription Details. Customer will give all notices to OLY.AI under this Agreement in writing delivered by courier to OLY.AI (Attention Legal Department) at OLY.AI’s head office address at 1656 ½ Malcolm Ave. Los Angeles, CA 90024, US or such other address for notice as specified by OLY from time to time.
(c) This Agreement is governed by, and construed in accordance with, the laws of the State of California, and the federal laws of the United States of American, without giving effect to any choice or conflict of law provision, principle or rule (whether of the State of California or any other jurisdiction). The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party irrevocably submits and attorns to the exclusive jurisdiction of the courts of the State of California sitting in the City of Los Angeles. Each Party irrevocably waives all rights to trial by jury.
(d) Customer may not assign this Agreement without OLY.AI’s prior written consent which consent will not be unreasonably withheld, conditioned or delayed. OLY.AI may assign this Agreement without Customer’s consent, provided that the surviving or acquiring party agrees to be bound by the terms of this Agreement. This Agreement is binding upon and will enure to the benefit of the Parties and their respective successors and permitted assigns.
(e) Despite any other provision of this Agreement, and except for the payment of Fees, neither Party will be liable for any delay in performing, or failure to perform, any of its obligations under this Agreement to the extent performance is delayed or prevented due to any cause or causes that are beyond that Party’s reasonable control. Any delay or failure of this kind will not be deemed to be a breach of this Agreement by the defaulting Party, and the time for the defaulting Party’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
(f) The Parties are independent contracting parties, and nothing in this Agreement creates or will be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the Parties.
(g) If any provision of this Agreement is held to be invalid or unenforceable for any reason then the provision will be deemed to be severed from this Agreement and the remaining provisions will continue in full force and effect without being invalidated in any way.
(h) No consent or waiver by a Party to or of any breach by the other Party of its obligations under this Agreement will be effective unless in writing and signed by both Parties.
(i) This Agreement may be amended or supplemented only by a written instrument signed by both Parties or their successors or permitted assigns. Purchase orders or other documents issued by Customer, whether or not accepted by OLY.AI, are for administrative convenience only, and any terms and conditions contained in those documents are of no force or effect and will not in any way amend or supplement this Agreement.
(j) This Agreement is the complete agreement between OLY.AI and Customer with respect to the subject matter of this Agreement, and supersedes any and all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than as expressly set forth in this Agreement.
OLY is the Secure AI-Powered Agent that empowers metric driven company culture to aide data driven decisions and win together team mentalities.
