Terms of Service

Last Updated: February 17, 2023

These Terms of Service (these “Terms”) govern the relationship between Oliver Software, inc (referred to herein as “Oliver”, “we” or “us”) and the Client, as identified in the Enrollment Form (as defined below) (referred to herein as “Client” or “you”). Oliver and Client are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” By accessing or using the Oliver Service (defined below), any related services that reference these Terms, or entering into any agreement that references these Terms, you agree to be bound by these Terms. The Enrollment Form and these Terms collectively constitute the “Agreement.”

If you are using the Oliver Service on behalf of a company or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement, and that, if the Client is an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.

This Agreement includes and hereby incorporates by reference any Subscription Documentation (defined below) executed between you and Oliver, as well as any policies or exhibits linked to or referenced herein. Please note that we may modify these terms as described in Section 19.9 below.

1. OVERVIEW OF THE OLIVER PLATFORM.

Oliver provides a proprietary multi-product platform that includes without limitation reviews, text messaging, response automation, online scheduling, appointment requests, waitlists or certain Add-Ons (each as defined below), and any other services Oliver may offer from time to time (the “Oliver Service”). Client will enter into one or more agreements with Oliver (each, an “Enrollment Form”) that references these Terms and details the Oliver Services ordered from Oliver and, if applicable the usage limits or other scope of use descriptions for the specific Oliver Service package (the “Scope of Use”). Client may be provided the option to purchase certain Oliver Services as part of a package or bundle offer (each, a “Bundle”), as detailed in the applicable Enrollment Form. Oliver shall have no obligation to provide any services or perform any tasks not specifically set forth in the Enrollment Form.

2. DEFINITIONS. Any capitalized term used but not defined in these Terms shall have the meaning given in the Enrollment Form. The following capitalized terms shall have the following meanings:

2.1. “Add-On” means integrations, applications and other add-ons that are used with the Oliver Service.

2.2. “Affiliate(s)” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of such entity or ownership of 50% or more of the voting securities of such entity.

2.3. “Aggregate/Anonymous Data” means: (i) data generated by aggregating Client Data with other data so that results are non-personally identifiable with respect to Client or its Customers and (ii) anonymous learnings, logs and data regarding use or effectiveness of the Oliver Service. Aggregate/Anonymous Data includes Metadata.

2.4. “Authorized User(s)” means Client’s employees and contractors who are acting for Client’s benefit and on its behalf, and whom Client has authorized to access the Oliver Service and the information contained therein.

2.5. “Business Associate Agreement” means a written agreement between a covered entity and a business associate containing the elements specified at 45 CFR 164.504(e), currently available at https://www.getoliver.com/business-associate-agreement, which may be amended from time to time.

2.6. “Client Data” means: (i) Content and any (ii) Submitted Data.

2.7. “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under the Agreement or learned during the performance of the Agreement, or, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed. Confidential Information also includes all Customer Data.

2.8. “Content” means information, data, text, images, music, sounds, photographs, graphics, videos, messages, tags and/or other materials/content that Client selects for use or makes accessible through the Oliver Service (including Third Party Content).

2.9. “Customer(s)” means any person that is a client, customer, or patient of Client, or that is a potential client, customer or patient of Client, who sends data through and/or access or utilizes the Oliver Service.

2.10. “Customer Data” means data or personal information related to the identity, characteristics and activities of Customers, collected or submitted to the Oliver Service by Client or captured by the Oliver Service. To the extent Client is a Covered Entity (as defined in the Business Associate Agreement), “Customer Data” also includes Protected Health Information (as defined in the Business Associate Agreement).

2.11. “Oliver Technology” means the Oliver Service, products, any and all related or underlying documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Oliver Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including all discoveries, innovations, improvements, ideas or inventions conceived of or developed in connection with Oliver providing the Oliver Service, or as a result of the Oliver Service, which may include and incorporate Feedback.

2.12. “Messages” include Short Message Service (SMS) and Multimedia Messaging Service (MMS) messages. Message length is technically limited, with specific capacities subject to change.

2.13. “Metadata” are data that Oliver derives from its analysis of Customer Data or Client Data submitted through the Oliver Service.

2.14. “Submitted Data” means data uploaded, inputted or otherwise submitted by Client to the Oliver Service, including any Protected Health Information (as defined in the Business Associate Agreement) or any Third Party Content.

2.15. “Subscription” means either: (i) Client’s entering into the Enrollment Form with Oliver, whereby Client agreed to receive the Oliver Service on an ongoing basis, according to the terms and conditions referenced in the Enrollment Form; or (ii) Client’s agreement to receive the Oliver Service on an ongoing basis, according to the terms and conditions referenced in any and all Subscription Documentation.

2.16. “Subscription Documentation” means any and all documentation evidencing Client’s agreeing to enter into a Subscription for the Oliver Service, including, without limitation, the Privacy Policy, Terms of Use, End-User License Agreement, and Terms of Service. If there is a conflict between this Agreement and the Subscription Documentation, this Agreement will control.

2.17. “Territory” means (i) all counties in the state of Utah, (ii) all other states of the United States of America and (iii) all other countries of the world where Oliver derives at least three percent (3%) of its gross revenues during the Restricted Period defined in Section 13.1 below.

2.18. “Third Party Content” means content, data or other materials that Client provides to the Oliver Service from Client’s third-party data providers, including through Add-Ons or Third Party Products used by Client.

2.19. “Third Party Product” means any Add-On, applications, integrations, software, code, online services, systems and other products not developed by Oliver.

Other terms are defined in other Sections of this Agreement.

3. ACCOUNT REGISTRATION.

Client will register for an Oliver account in order to access or receive the Oliver Service. Account information must be accurate, current and complete, and will be governed by Oliver’s Privacy Policy (currently available at: https://Oliver.com/privacy-policy/), as may be amended from time to time. Client agrees to keep its contact information up-to-date so that Oliver may send notices, statements and other information by email or through Client’s account.

4. USE RIGHTS.

4.1. Training and Setup. Before Oliver will activate the Oliver Service, Client must complete Oliver’s standard training call (the “Training Call”) and provide Oliver and any other third party, as necessary, all applicable documentation (“Training Call”). The Parties shall mutually determine the preferred date and time for the Training Call and identify the participating individuals. During the Training Call, in order for online reviews and website widgets to be activated, Client must link review sites and provide location information as directed by Oliver.

4.2. Use of Oliver Services. Subject to all terms and conditions of the Agreement, Oliver grants Client a worldwide, non-exclusive, non-transferable, non-sublicensable right, revocable, limited right and license during the applicable Subscription Term to access and use the Oliver Service designated on the Enrollment Form or Subscription Documentation solely for Client’s internal business purposes, but only in accordance with the Enrollment Form, these Terms, Subscription Documentation, and all applicable Scope of Use descriptions. Client acknowledges that Client may be responsible for additional fees as set forth Section 8 if it exceeds the Scope of Use.

4.3. Use by Others. Client may permit its Authorized Users to use the Oliver Service provided their use is for Client’s benefit only and remains in compliance with the Agreement. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein. Client will be solely responsible for authorizing and creating user IDs, passwords and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and/or restricting or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Client is solely responsible for ensuring that any user IDs, passwords and other access credentials (such as API tokens) for the Oliver Service are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all laws applicable to Client. Client is solely responsible in determining which of its agents or employees should be an Authorized User, the level of access for each Authorized User, and when such access should be terminated or restricted. Client will be solely responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials. Client must notify Oliver immediately of any breach of security or unauthorized use of its account.

4.4. General Restrictions. Client must not (and must not allow any third party to):(i) rent, lease, copy, transfer, sublicense or provide access to the Oliver Service to a third party (except Authorized Users as specifically authorized above); (ii) incorporate the Oliver Service (or any portion thereof) into, or use it with or to provide, any site, product or service; (iii) use the Oliver Service (or any portion thereof) for time sharing purposes or for a third party’s benefit; (iv) publicly disseminate information regarding the performance of the Oliver Service (which is deemed Oliver’s Confidential Information); (v) modify or create a derivative work of the Oliver Service or any portion thereof; (vi) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Oliver, except to the extent expressly permitted by applicable law and then only upon advance notice to Oliver; (vii) break or circumvent any security measures or rate limits for Oliver Services; (viii) distribute any portion of the Oliver Service other than as specifically permitted above; or (ix) remove or obscure any proprietary or other notices contained in the Oliver Service including in any reports or output obtained from the Oliver Service.
4.5. Messages. If your use of the Oliver Service requires an API token or similar customization, you are entitled to send up to five thousand (5,000) Messages each month per Location enrolled. If you exceed the 5,000 Messages/month limit, Oliver will promptly notify you of the same and you may be charged for such usage and you agree to pay the additional Fees in the manner provided herein. Messages may contain up to 160 characters. Any Message with more than 160 characters will be counted as two messages or more.

5. CLIENT DATA.

5.1. Rights in Client Data. As between the Parties, Client retains all right, title and interest (including any intellectual property rights) in and to the Client Data. Client hereby grants Oliver a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the Client Data solely to the extent necessary to provide the Oliver Service and related services to Client and as otherwise provided herein.

5.2. Aggregate/Anonymous Data. Client agrees that Oliver will have the right to generate Aggregate/Anonymous Data. Notwithstanding anything to the contrary herein, the Parties agree that Aggregate/Anonymous Data is Oliver Technology, which Oliver may use for any business purpose during or after the term of the Agreement (including without limitation to develop and improve Oliver’s products and services and to create and distribute reports and other materials). Oliver will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable laws. If the Business Association Agreement applies to Client, Oliver will use the Aggregate/Anonymous Data only in conformity with the terms thereof.

5.3. Security. Oliver agrees to maintain reasonable administrative, technical and organizational measures that are intended to secure its systems from unauthorized access, use or disclosure. These measures will include: (i) storing Client Data on servers located in a physically secured location and (ii) using firewalls, access controls and similar security technology designed to protect Client Data from unauthorized disclosure. If Client is a Covered Entity (as defined in the Business Associate Agreement), Oliver will secure and utilize Protected Health Information in accordance with the Business Associate Agreement. Oliver takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section.

5.4. Storage. Unless otherwise specified in an Enrollment Form, Client shall not exceed 1TB of uploaded Content to the Oliver Service. Notwithstanding the foregoing, Oliver does not provide an archiving service. During the Subscription Term, Client acknowledges that Oliver may delete Content no longer in active use. Except for requirements that are included in the Business Association Agreement entered into between Oliver and Client, as applicable, Oliver expressly disclaims all other obligations with respect to storage.

5.5. Monitoring. Client understands and agrees that Oliver, and any third-party platform(s) Client uses or accesses in connection with the Oliver Service, may monitor and analyze Client Data or Customer Data (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Oliver Service or third-party platform; to improve Client’s experience using the Oliver Service or third-party platform; to customize and communicate informational or product offerings and promotions to Client; to ensure compliance with the Subscription Documentation; and/or to make the Oliver Service, or third-party platform more helpful or useful to Client and other users.

6. CLIENT OBLIGATIONS; REPRESENTATIONS.

6.1. Customer Authorization; Client Data. Client will, for the duration of the Subscription Term: (i) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable laws, prior to utilizing the Oliver Service; and (ii) obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by the Agreement and to grant Oliver the rights herein. Client acknowledges and agrees that Client is solely responsible for its compliance with applicable law and regulations and shall not rely on the Oliver Service for any such compliance. Use of the Oliver Service does not guarantee compliance with applicable law or regulation, and Oliver specifically disclaims any liability for Client’s non-compliance. Client represents and warrants that its Client Data, and Oliver’s use thereof, will not violate third party rights, including intellectual property, privacy and publicity rights. If Client receives any take down requests or infringement notices related to Client Data or its use of Third Party Products, it must promptly stop using these items with the Oliver Service and notify Oliver immediately.

6.2 Content. Client acknowledges that all Content is solely Client’s responsibility of the party from whom such Content originated. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable law and regulations and shall not rely on the Oliver Service for any such compliance. Oliver will not provide or create any Content for Client to make available through the Oliver Service or any other medium. By providing any Content to Oliver, the Client warrants and represents that the Client has sole ownership of such Content and that the Content is free of any intellectual property claims by any third party. Client also warrants and represents that Oliver shall have no obligation to provide Client or third parties any compensation for such Content.

6.3. Compliance with Laws. Client warrants and represents that it is in full compliance with all applicable state, federal, and international laws, rules and regulations and that Client will not use the Oliver Service in a manner that would violate or cause Oliver to violate any obligation with respect to any such laws, rules or regulations, or amendments thereto, including but not limited to the California Consumer Privacy Act, Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, any policy or decision made by the Canadian Radio-television and Telecommunications Commission, Canada’s Anti-Spam Legislation, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, Electronic Signatures in Global and National Commerce Act, any Joint Commission requirements or standards, COPPA, Do Not Call rules and prohibitions, any industry self-regulatory guidance issued by telecommunications carriers and the Cellular Telecommunications Industry Association (CTIA), and all applicable local, state and federal privacy and cybersecurity laws and regulations.

6.4 Representations Regarding Messages.

(a) Client further represents and warrants that (i) it, and not Oliver, is the “sender” of all Messages transmitted using the Oliver Service; (ii) Client has consent to send automated Messages to the telephone numbers in the Submitted Data for purposes that include marketing, and Client acknowledges and agrees that it is solely responsible for ensuring such consent has been obtained; (iii) Client has procured all rights and licenses and has all power and authority necessary to use and text enable those phone numbers it registers or associates with Client’s account; (iv) Client will not use the Oliver Service on a phone number that has been exchanged, rented, or purchased from a third party, or reassigned without the permission of the phone number owner; and (v) the phone number is not a mobile subscriber phone number.

(b) Client acknowledges and agrees that Oliver has no obligation to screen content for compliance with the TCPA, telemarketing, do-not-call or privacy laws, and Client acknowledges and agrees that it is solely responsible for such compliance.

6.5 Representations Regarding Reviews and Ratings. If monitoring and managing your online reviews or ratings is included in the Oliver Service you order, you represent and warrant that (i) you are authorized to provide us with any Customer, Client or Authorized User information that you provide to us in connection with such services (the “Information”), including any personally identifying information of those parties; (ii) our possession and use of the information on your behalf in connection with the Oliver Service will not violate any contract, statute, or regulation; (iii) any content that you and your authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, is the original work of your authorship, and will only concern you and the goods and services that you provide; (iv) you and your authorized representative(s) will only request reviews via the Oliver Service from bona fide Customers; and (v) you and your authorized representative(s) will only provide Information for Customers whose most recent transaction with your business occurred less than 12 months from the date you provide their information to Oliver. Additionally, if an integration or auto-connector is included in the Oliver Service you order, you grant Oliver the right to access your Information or CRM system directly or through a third-party service for the purposes of fulfilling Oliver’s obligations under the Agreement, and you warrant that you are not restricted by law or applicable agreement from granting Oliver such right. Oliver will not be held liable for any consequences of false or inaccurate content published to an online review or ratings website through Oliver.

6.6 Additional Representations and Warranties. Client represents and warrants that Client and/or Client’s authorized representative(s) will only use the Oliver Service for interaction with actual Customers.

6.7. Additional Covenants. Client covenants to Oliver that Client: (a) will comply with any of Oliver’s policies and procedures which may be provided to Client and may be amended from time to time with advance notice of material changes from Oliver to Client; (b) will not use Oliver’s name or logo, in any written material or advertisement, without Oliver’s prior written approval.

6.8. Electronic Communication. When Client visits Oliver’s website, uses Oliver’s mobile application, sends e-mails to Oliver, or communicates electronically with Oliver, in any form, Client consents to also receive communications from Oliver electronically. Client agrees that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

6.9. Client Responsibilities. Client responsibilities related to advertising services include:

a) Granting to Oliver access and control (including logins, passwords, and administrator-level access) to social media networks, email addresses, Google Analytics, or other platforms owned or controlled by the Client as needed.

b) Securing Client’s internal approvals, including for advertising Oliver creates or places on Client’s behalf. At Client’s request, Oliver shall provide Client opportunity to pre-approve all advertising, and Client shall be able to view all advertising directly on the social media platforms. As such, Oliver’s liability for any advertisement shall be capped at the total amount of management fee charged by Oliver for running any specific advertisement.

c) If requested, Oliver shall provide proofs of content (e.g. ad or post copy or images) to Client, and permit up to two rounds of edits from Client. If edits aren’t received from Client within 48 hours of final proof being delivered, Client agrees that such inaction represents approval of said content. If Client requests edits to content already created and approved that are not correcting Oliver errors, such edits shall count as an additional piece of content. Edits will be completed the same business day if requested before 3pm Mountain Time; otherwise they will be completed on the next business day. Additional charges may apply to edit content that has already been published. Edits may include copy / call to action, targeting, dates, budget, or placement, but after the first proof is approved, may not include Facebook ad type, imagery, or inventory feed.

d) Procurement of any third party products as mutually agreed (“Third Party Products”)

e) Ensuring the legality of any use by Client of Oliver’s
software tools or Services as pertaining to all state, local or federal or other laws and regulations, including, but not limited to, activities such as contests, sweepstakes, giveaways or similar programs managed by Oliver, and obtaining consents for communicating with consumers via email, text message or other electronic means using Oliver software. By providing phone numbers, email addresses or other customer contact information to Oliver for the purpose of sending communications to customers via Oliver systems, Client agrees that it is the initiator and in effect the sender of any such communications. Client agrees to indemnify and hold harmless Oliver for any alleged or actual violation of any such law or applicable regulation. Tasks that are primarily the responsibility of Client’s personnel will remain Client’s responsibility, even if Oliver assists Client in performing such tasks. Client agrees that Oliver may rely on all Client decisions and Client approvals with regard to the Services conveyed to Oliver.

7. SUPPORT SERVICES.

Oliver makes available web-based support through its website (currently available at www.getoliver.com). Additional services may be available to Client upon payment of applicable fees (if any), as specified in Client’s Enrollment Form or any related Subscription Documentation. Any support services are subject to these Terms and Oliver’s applicable support policies. Oliver may also provide onboarding, deployment and other services under the Agreement. The scope, pricing and other terms for these additional services will be set forth in a proposal, Subscription Documentation, or other document referencing the Enrollment Form. Oliver’s ability to deliver the Oliver Service will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Oliver Service.

8. SERVICE FEES AND PAYMENT.

8.1. Fees. Client agrees to pay to Oliver all fees for the Subscription to the Oliver Service or any Bundle (“Subscription Fees”) and any additional fees (if applicable), in accordance with an Enrollment Form or Subscription Documentation (collectively, the “Fees”). Oliver reserves the right to revise the Fees including raising the price for the Oliver Service by providing Client at least thirty (30) days’ prior written notice.

8.2. Payment of Fees. If Client has elected to pay via credit card, ACH, direct debit, etc. on the applicable Enrollment Form, Client authorizes Oliver to charge the Subscription Fees automatically, on an auto-renew basis, during the Subscription Term. Unless otherwise specified in an Enrollment Form, all Subscription Fees shall be paid in advance. Subscription Fees are non-refundable and non-creditable and payment obligations non-cancellable. If Client’s use of the Oliver Services requires the payment of additional Fees (per the terms of this Agreement), Oliver shall notify Client and the parties shall work in good faith to promptly and jointly agree to any excess fees to be paid. The foregoing provision shall not apply to any increase in the fees if Client exceeds the Scope of Use per the term of this Agreement, as determined by Oliver. Oliver shall have the right to charge interest on all overdue amounts at the rate of 1% a month, or the maximum lawful amounts, whichever is less. If Oliver sends the account for collection or initiates legal action to collect overdue amounts, Client shall be liable for all cost and expenses of such action, including reasonable attorney’s fees, court costs, and expenses. Additionally, after payment becomes overdue, Oliver shall have the right to immediately cease Client’s access to the Oliver Service.

8.3 Taxes. Oliver’s fees are exclusive of all taxes, and Client must pay any applicable sales, use, VAT, GST, excise, withholding or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Oliver. Client will make tax payments to Oliver to the extent amounts are included in Oliver’s invoices. Should Oliver be unable to process/receive the fees when due and owing, payment shall be considered overdue.

9. SUSPENSION OF SERVICE.

9.1. Suspension of Service. Oliver may suspend Client’s access to the Oliver Service if: (i) any monies are overdue to Oliver; (ii) Client has breached the Agreement and any addenda thereto; or (iii) Client has exceeded its Scope of Use limits. Oliver may also suspend Client’s access to the Oliver Service, remove Client Data or disable Third Party Products if it determines that suspension is necessary to prevent harm or liability to other Clients or third parties or to preserve the security, stability, availability or integrity of the Oliver Service. Oliver will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period. Unless the Agreement has been terminated, Oliver will cooperate with Client to restore access to the Oliver Service once it verifies that Client has resolved the condition requiring suspension.

10. TERM AND TERMINATION.

10.1. Term. This Agreement is effective until the applicable Subscription Term for the Oliver Service has expired or the Subscription is terminated as expressly permitted herein. The term for any Subscription to the Oliver Service will be set forth in the Enrollment Form and will automatically renew for subsequent periods of equal duration (the “Subscription Term”), unless either Party provides written notice to the contrary at least thirty (30) day prior to the end of the then-current Subscription Term, in which case, the Subscription Term will terminate automatically without penalty at the end of such term. Unless otherwise stated in the Enrollment Form, the initial term for any Subscription to the Services is twelve (12) months and will automatically renew for periods of equal duration.

10.2. Termination by Oliver. Oliver may terminate this Agreement, including any Enrollment Form, immediately, without notice: (i) if Client fails to cure any material breach of this Agreement (including a failure to pay Fees) within fifteen (15) days after written notice detailing the breach, (ii) upon fraud or criminal conduct committed by Client, or (iii) the insolvency of Client.

10.3. Effect of Termination. Upon any expiration or termination of this Agreement of the Enrollment Form: (i) Client’s license rights shall terminate and it must immediately cease use of the Oliver Service (including any related Oliver Technology) and delete (or, at Oliver’s request, return) any and all copies of any Oliver documentation, passwords or access codes and any other Oliver Confidential Information in Client’s possession, custody or control, and (ii) Client’s right to access any Client Data in the applicable Oliver Service will cease, and unless otherwise precluded by a Business Associate Agreement, Oliver may delete any such data in its possession at any time. If Oliver terminates the Enrollment Form for cause as provided in Section 10.2, any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

11. CONFIDENTIAL INFORMATION.

11.1. Obligation of Confidentiality. Each Party (as the receiving party) must: (i) hold in confidence and not disclose the other Party’s Confidential Information Customer Data to third parties except as permitted by the Agreement; and (ii) use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under the Agreement. Each Party may share the other Party’s Confidential Information and Customer Data with its employees, agents, contractors or subcontractors having a legitimate need to know, provided that such Party remains responsible for any recipient’s compliance with the terms of this Section 11 and these recipients are bound to confidentiality obligations no less protective than this Section.

11.2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party prior to receipt of the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A Party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other Party to obtain confidential treatment for the information.

11.3. Remedies. The Parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

12. NON-SOLICITATION/NON-COMPETITION.

12.1. Non-Solicitation. During the Subscription Term and for a period of three (3) years thereafter (the “Restricted Period”), Client shall not, (a) without Oliver’s prior written consent, directly or indirectly, solicit or encourage any employee or contractor of Oliver to terminate employment with, or cease providing services to, Oliver, or (b) whether for its own account or for the account of any other person or entity, intentionally interfere with any person who is or during the Subscription Term was a partner, supplier, client or customer of Oliver.

12.2. Non-Competition. During the Restricted Period, Client will not, without the prior written consent of Oliver: (i) serve as a partner, employee, consultant, officer, director, manager, agent, associate, investor of, (ii) directly or indirectly, own, purchase, organize or take preparatory steps for the organization of, or (iii) build, design, finance, acquire, lease, operate, manage, invest in or work for any business in competition with or otherwise similar to Oliver’s business in the Territory.

a. Client’s fulfillment of the obligations contained in Section 12.2 above is necessary to preserve the Confidential Information, value and goodwill of Oliver. Client acknowledges the time, geographic and scope limitations of the obligations under Section 12.2 above are reasonable, especially in light of Oliver’s desire to protect trade secrets, and that Client will not be precluded from conducting its business if obligated to comply with Section 12.2 above.

b. The covenants contained in Section 12.2 above shall be construed as a series of separate covenants, one for each city, county and state of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in Section 12.2 above. If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from the Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of Section 12.2 above are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, then permitted by such law.

13. Oliver TECHNOLOGY.

13.1. Ownership and Updates. The Agreement is a subscription for access to and use of the Oliver Service. Client acknowledges that it is obtaining only a limited right to use the Oliver Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Client under the Agreement. Client agrees that Oliver (or its suppliers) retains all rights, title and interest (including all intellectual property rights) in and to all Oliver Technology (which is deemed Oliver’s Confidential Information) and reserves any licenses not specifically granted herein. The Oliver Service is offered as an on-line, hosted product and a mobile application available for download onto Client’s mobile device. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Oliver Service and that Oliver at its option may make updates, bug fixes, modifications or improvements to the Oliver Service from time-to-time. All Oliver Technology is and shall be the sole and exclusive property of Oliver. Client agrees to assign and hereby does assign any and all right, title and interest in and to all Oliver Technology. Client agrees to perform all acts deemed reasonably necessary or desirable by Oliver to carry out the purposes of this Section 13.1.

13.2. Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Oliver (collectively, “Feedback”), Client hereby grants Oliver a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in the Agreement limits Oliver’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.

14. INDEMNIFICATION.

Client will indemnify, defend and hold harmless Oliver and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Oliver Parties”), to the fullest extent permitted by law, from and against any third-party claims, demands and related costs, losses, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to (i) your unauthorized use of, or misuse of, the Oliver Service; (ii) your violation of any applicable law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (iii) any dispute or issue between you and any third party (including your Customers); (iv) any demand, dispute, or issue (including without limitation fee disputes) between you and your payment processor; (v) any Client Data; (vi) Oliver’s use, as contemplated in this Agreement, of any information provided to Oliver by you or your Customers; (vii) breach or alleged breach of this Agreement, including Client’s representations, warranties, and obligations;(viii) any claim of a governmental entity or other party that you have violated any law, rule, or regulation; or, (ix) if applicable, breach or alleged breach of Client’s obligations contained in the Business Associate Agreement. Client also agrees to immediately defend the Oliver Parties against these claims at Oliver’s request, but Oliver may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. Oliver reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Client and Client must not settle any claim without Oliver’s prior written consent. This section survives termination of these Terms.

15. DISCLAIMERS.

EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL Oliver TECHNOLOGY AND RELATED SERVICES, MATERIALS AND CONTENT MADE AVAILABLE THROUGH THE Oliver TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER Oliver NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT. Oliver MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT Oliver TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT Oliver TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, AND Oliver DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. Oliver WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD PARTY PRODUCTS, THIRD PARTY CONTENT, OR NON-Oliver SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THE AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON Oliver TECHNOLOGY OR Oliver’S RELATED SERVICES. THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE Oliver SERVICE OR THE Oliver PARTIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE Oliver SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Oliver ENTITIES OR THE Oliver SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. Oliver DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY Oliver TO ITS CLIENT(S) SHALL NOT CONSTITUTE LEGAL ADVICE. USE OF THE Oliver SERVICE DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.

16. LIMITATIONS OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, Oliver AND ITS AGENTS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, MANAGERS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, VENDORS, SUPPLIERS, ATTORNEYS OR AFFILIATES SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, GENERAL, SPECIAL, DIRECT, INDIRECT, COMPENSATORY, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOST, BREACHED OR INACCURATE DATA, LOSS OF CONFIDENTIALITY OR PRIVACY, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR OTHER INTANGIBLE LOSSES, HOWEVER CAUSED (INCLUDING VIA A CYBERATTACK OR OTHER CYBER-RELATED INCIDENT), WHETHER IN CONTRACT, TORT, NEGLIGENCE, MALPRACTICE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, RESULTING FROM OR ARISING OUT OF THE AGREEMENT OR THE PERFORMANCE THEREOF, WITHOUT RESPECT TO NOTICE OF THE POSSIBILITY THEREOF. Oliver’S CUMULATIVE, AGGREGATE AND MAXIMUM LIABILITY TO CLIENT FOR ANY LOSSES, CLAIMS, BREACHES OR DAMAGES UNDER THE AGREEMENT WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY CLIENT UNDER THE AGREEMENT DURING THE ONE (1) MONTH PRIOR TO SUCH LOSS, OR (B) THE AMOUNT OF $5,000.00.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 16 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THE AGREEMENT, ANY Oliver TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND A MATERIAL TERM OF THESE TERMS OF USE. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT Oliver WOULD NOT BE ABLE TO PROVIDE THE WEBSITE AND SERVICES WITHOUT SUCH LIMITATIONS.
If you are a California resident, you agree to waive California Civil Code Section 1542, and any similar provision in any other jurisdiction (if you are a resident of such other jurisdiction), which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
17. THIRD PARTY PRODUCTS AND INTEGRATIONS.
If Client uses Third Party Products in connection with or otherwise made available through the Oliver Services, those products may make Third Party Content available to Client and may access Client’s Data contained in the Oliver Service. Oliver does not warrant or support Third Party Products or Third Party Content (whether or not these items are designated by Oliver as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Oliver Services, including their modification, deletion, disclosure or collection of Client Data. Oliver is not responsible in any way for Client Data once it is transmitted, copied or removed from the Oliver Services. Client agrees and acknowledges that use of such Third Party Products may require Client to enter into separate terms and conditions with such third-party. Oliver is not a party to such terms and shall not be liable thereunder. Client may use Oliver’s Add-on Platform to enable non-Oliver Add-Ons for use with the Oliver Services. If Client is a Covered Entity, it is solely Client’s responsibility to ensure that any Third Party Products and the vendors thereof, comply with applicable law as set forth in the Business Associate Agreement.

18. DISPUTE RESOLUTION

If a dispute arises between the Parties related to the Agreement or the Oliver Service provided therefrom, and the dispute cannot be settled through informal negotiations, the Parties agree to resolve their dispute as follows:

18.1. Arbitration. Except as expressly provided otherwise in the Agreement, upon the request of either Party, any and all disputes or claims, whether past, present or future, arising out of, relating to, or resulting from the Agreement, including, without limitation, Oliver’s performance of the Oliver Service, termination of the Agreement, or the relationship between the Parties (collectively, “Claim(s)”), shall be subject to binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules then in effect (the “Rules”) (excluding the Optional Procedures for Large, Complex Commercial Disputes) unless the parties mutually agree on another administrator or other procedures. If the AAA is unable to serve as administrator and the parties cannot agree on a replacement, a court with jurisdiction will select the administrator or arbitrator, who must comply with the terms of this arbitration provision. The term “Claim(s)” shall be interpreted broadly and includes, without limitation, contract and tort disputes, disputes arising under common law, statutes, ordinances, rules and regulations and data breach and privacy disputes. “Claim(s)” also includes initial claims, counterclaims, cross-claims, third-party claims, and federal, state, local, and administrative claims, and claims which arose before the effective date of this arbitration provision. Notwithstanding the foregoing, any dispute concerning the validity or enforceability of this arbitration provision must be decided by a court; any dispute concerning the validity or enforceability of the Agreement as a whole is for the arbitrator. This arbitration provision is intended to benefit, and may be enforced by, a Party’s parent companies, subsidiaries, affiliates, successors and assigns; the employees, officers and directors of the Party and the foregoing entities; and any other person or entity named as a defendant or respondent in a Claim asserted by one Party against the other Party.

The Federal Arbitration Act, 9 U.S.C. § 1, et seq., governs the interpretation and enforcement of this arbitration provision because the Agreement relates to a transaction involving interstate commerce. To the extent that state law is applicable under the FAA, Delaware law shall govern. Such arbitration shall be held in Delaware before a single neutral arbitrator selected in accordance with the Rules. The arbitrator must be an attorney with at least ten years of experience or a retired judge, unless the parties otherwise agree. The arbitrator will apply the same statutes of limitation and privilege rules that a court would apply if the matter were pending in court. The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including discovery motions, motions for summary judgment and motions to dismiss and demurrers, prior to any arbitration hearing. The arbitrator shall issue a written decision on the merits and will have the power to award any remedies, including attorneys’ fees and costs, available under applicable law in an individual case. The arbitrator’s award will be final and binding, except for any appeal rights under the FAA. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction. No finding, award or judgment from any other arbitration will impact the arbitration of any Claim, and no finding, award or judgment from this arbitration will impact any other arbitration. If this arbitration provision conflicts with the Rules or other terms of the Agreement, this arbitration provision shall govern.

JURY TRIAL WAIVER: BY AGREEING TO SUCH ARBITRATION OF SUCH DISPUTES AND CLAIMS, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHT TO A JURY TRIAL RELATING THERETO, INCLUDING ALL CLAIMS UNDER COMMON LAW AND FEDERAL, STATE, MUNICIPAL OR OTHER JURISDICTIONAL STATUTES, RULES OR REGULATIONS.

CLASS ACTION WAIVER: NEITHER PARTY WILL HAVE THE RIGHT TO: (i) PARTICIPATE IN A CLASS ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE; (ii) ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; OR (iii) JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST A PARTY WITH CLAIMS BY OR AGAINST ANY OTHER PERSON. THE ARBITRATOR WILL HAVE NO AUTHORITY TO CONDUCT ANY SUCH CLASS, PRIVATE ATTORNEY GENERAL, MULTIPLE-PARTY OR OTHER REPRESENTATIVE PROCEEDING. Arbitration shall be initiated by commencing an arbitration proceeding in accordance with the Rules. A Party may also move to compel arbitration of Claims that the other Party has filed in court. If the motion is granted, the Party asserting the Claims shall commence the arbitration proceeding. Even if all Parties have opted to litigate a Claim in court, a Party may elect arbitration with respect to any Claim made by a new party or any Claim later asserted by a Party in that or any related or unrelated lawsuit (including a Claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this arbitration provision.

18.2. Remedy. Except as provided otherwise by the Rules and the Agreement, if a Party elects to arbitrate, arbitration will be the sole, exclusive and final remedy for any dispute between the Parties and neither Party shall be permitted to pursue court action regarding Claims that are subject to arbitration. The Agreement does not prohibit either Party from pursuing an administrative claim, but does preclude each Party from pursuing court action regarding any such claim.

If any portion of this arbitration provision is held to be invalid or unenforceable, the remaining portions will nevertheless remain in force, subject to two exceptions: (i) if a determination is made that the Class Action Waiver is unenforceable, and that determination is not reversed on appeal, then this arbitration provision (except for this sentence) will be void in its entirety; and (ii) if a court determines that a public injunctive relief Claim may proceed notwithstanding the Class Action Waiver, and that determination is not reversed on appeal, then the public injunctive relief Claim will be decided by a court, any individual Claims will be arbitrated, and the Parties will ask the court to stay the public injunctive relief Claim until the other Claims have been finally concluded. This arbitration provision shall survive termination, suspension, breach or expiration of this Agreement or any bankruptcy.

18.3. Injunctive Relief. Violation of the Agreement will cause irreparable injury and money damages will not provide an adequate remedy therefor. Both parties hereby consent to the issuance of injunctive relief as permitted by the Rules, without posting any bond or other security, compelling both parties to comply with the Agreement. Both parties shall be entitled to recover reasonable costs and attorneys’ fees in any successful injunctive action under this Section.

19. GENERAL.

19.1. Assignment. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign the Agreement without the advance written consent of the other Party, except that Oliver may assign the Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign the Agreement except as expressly authorized under this Section 19.1 will be null and void.

19.2. Notices. Any notice or communication to Oliver under the Agreement must be in writing. Client must send any notices under the Agreement (including breach notices) to Oliver at the following address: 2261 Market Street #4913 San Francisco, CA 94114 and include “Attn. Legal Department” in the subject line. Oliver may send notices to the e-mail addresses on Client’s account or, at Oliver’s option, to Client’s last-known postal address. Oliver may also provide operational notices regarding the Oliver Service or other business-related notices through conspicuous posting of such notice on Oliver’s website, Oliver’s mobile application or the Oliver Service. Each Party hereby consents to receipt of electronic notices. Oliver is not responsible for any automatic filtering Client or its network provider may apply to email notifications.

19.3. Publicity. Unless otherwise specified in the applicable Enrollment Form, Oliver may use Client’s name, logo and marks to identify Client as a Oliver Client on Oliver’s website, mobile application and other marketing materials.

19.4. Claims of Copyright Infringement. We comply with the “safe harbor” provisions of the Digital Millennium Copyright Act of 1998. If you see any materials on the website or mobile application that you believe violate any copyright rights, including yours, please send an e-mail describing the violation you believe exists to our copyright agent, who can be reached at privacy@getoliver.com. If we become aware of any such items on the website or mobile application, we will promptly take action to ensure we are in full compliance with all privacy and copyright laws.

19.5. Subcontractors. Oliver may use subcontractors and permit them to exercise the rights granted to Oliver in order to provide the Oliver Service and related services under the Agreement. These subcontractors may include, for example, Oliver’s hosted service and CDN providers. However, subject to all terms and conditions herein, Oliver will remain responsible for: (i) compliance of its subcontractors with the terms of the Agreement; and (ii) the overall performance of the Oliver Services if and as required under the Agreement.

19.6. Subpoenas. Nothing in the Agreement prevents Oliver from disclosing client data to the extent required by law, subpoenas, or court orders, but Oliver will use commercially reasonable efforts to notify Client where permitted to do so.

19.7. Independent Contractors. The Parties to the Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither Party has the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

19.8. Force Majeure. Neither Party will be liable for any delay or failure to perform its obligations under the Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act or order.

19.9. Amendments; Waivers. Oliver may update or modify these Terms (including referenced policies and other documents) from time-to-time by posting a revised version or by notification via the email associated with Client’s account. If Oliver modifies these Terms during Client’s Subscription Term, the modified version will take effect upon Client’s next Subscription Term renewal, except that: (i) changes to the policies referenced herein (such as the Acceptable Use Policy) will take effect thirty (30) days from the date of posting; (ii) if Oliver launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Client’s acceptance; and (iii) any updated or modified Terms will take effect immediately for free access Subscriptions or if Client enters a new Enrollment Form or the Subscription changes following the modification. Client may be required to click through the updated Terms to show acceptance; in any event, continued use of free access Subscriptions or any renewal of a Subscription Term following the update shall constitute acceptance of the updated Terms. If Client does not agree to the updated Agreement after it takes effect, Client will no longer have the right to use the Oliver Service. Except as otherwise described in this Section, any modification or amendment to the Agreement, including these Terms, must be made in writing and signed by a duly authorized representative of each Party (each in its discretion). No amendment to the arbitration provision will apply to any Claim that is pending in court or in arbitration at the time of the amendment. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by a duly authorized representative of the waiving Party.

19.10. Severability. Except as set forth in the arbitration provision, if any provision of the Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the Agreement may otherwise remain in effect.

19.11. No Third Party Rights. Except as set forth in the arbitration provision, nothing in the Agreement confers on any third party the right to enforce any provision of the Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Enrollment Form and not any Affiliates.

19.12. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce the Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

19.13. Entire Agreement. The Agreement, including these Terms and any applicable Subscription Documentation, constitutes the full and complete understanding and agreement of the Parties with respect to the subject matter herein and supersedes all prior or contemporaneous oral or written understandings and agreements of the Parties with respect to the Oliver Technology or any other subject matter covered by this Agreement. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only, and have no legal effect.

19.14. Governing Law; Jurisdiction and Venue. The Agreement is governed by the laws of the State of Delaware and the United States, without regard to choice or conflict of law rules thereof. The arbitration provision is governed by the FAA. If a dispute is not arbitrated, the exclusive jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state courts located in Delaware or the United States District Court for the District of Delaware, and both parties submit to the personal jurisdiction of these courts.

19.15. Survival. The following sections survive any expiration or termination of this Agreement: 2 (Definitions), 4 (Use Rights), 5 (Client Data), 8 (Fees and Payment), 10 (Term and Termination), 11 (Confidential Information), 12 (Non-Solicitation/Non-Competition),13 (Oliver Technology), 14 (Indemnification), 15 (Disclaimers), 16 (Limitation of Liability), 17 (Third Party Products and Integrations), 18 (Dispute Resolution), and 19 (General).

20. SPECIAL CONSIDERATION - USE BY CHILDREN.

If you are a school, district, or teacher, you represent and warrant that you are solely responsible for complying with the Children’s Online Privacy Protection Act of 1998 and its rules (“COPPA”), meaning you must obtain consent from all parents whose children are under 13 years of age. If you are a teacher, you represent and warrant that you are authorized by your school or district to use the Oliver Services. You also represent and warrant that you are entering into these Terms on behalf of your school or district. Additionally, if you are a school, district, or teacher providing consent on behalf of parents or guardians, you may be required to provide adequate school credentials and a valid school email address to verify your identity.

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