Merchant Terms of Service

This Olive Merchant Terms Of Service (“TERMS”) is between you (“Merchant”) and Olive Group Ltd., a corporation organized under the laws of the Province of Ontario (“Olive”) and governs the rights and obligations of Merchant  and Olive with respect Merchant’s use of the Platform (as defined below). 

READ THE TERMS AND CONDITIONS OF THIS TERMS CAREFULLY BEFORE PROCEEDING TO USE THE PLATFORM. BY CLICKING ON THE “I ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS HEREIN, AND THE TERMS OF THE ORDER FORM. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT PROCEED WITH USING THE PLATFORM.

IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU CANNOT USE THE PLATFORM.

The parties agree as follows: 

Article 1 - DEFINITIONS

In these Terms the following terms have the meanings indicated:

1. “Affiliate” of a party means any other person or entity that, directly or indirectly, controls, is controlled by or is under common control with such party; “control” means the power, directly or indirectly, to direct or cause the direction of the management and policies of another person or entity, whether through ownership of voting securities, by contract or otherwise.
2. “Agreement” means these Terms, including all schedules hereto, and the Order Forms (including all documents incorporated therein), considered as a whole, as they may be amended. 
3. “Authorized User” means an employee of Customer authorized to utilize the Platform to administer the Incentive Program.
4. “Confidential Information” means financial, business and/or technical information of the Discloser, regardless of the form or manner in which the information is disclosed or learned, including, but not limited to, marketing and product plans, ideas, concepts, business plans, employees and employee information, inventions, algorithms, decision technology and/or models, processes, designs, specifications, drawings, samples, improvements, developments, applications, engineering, manufacturing and marketing data and plans, software code (object and source code), documentation (including without limitation manuals, training materials, and presentations), and functionality, security procedures and approaches, know-how, customer names and information, experimental work, distribution arrangements and trade secrets and other information marked confidential by the Discloser. 
5. “Cooperation” means Merchant's general cooperation and providing access to information that is reasonably required to allow Olive to perform its obligations under these Terms, including without limitation: (i) providing data and materials in the format and according to the specifications required by Olive, (ii) for onsite services, providing Olive with necessary access to office accommodations, facilities, equipment, security access information, and software interfaces to Merchant’s other business applications; (iii) providing personnel assistance as is reasonably requested by Olive at any time; (iv) complying with all terms, conditions, and requirements set forth in these Terms; and (v) cooperating with Olive to make decisions and communicate information in a timely manner. 
6. “Customer” means all customers of Olive that use the Platform to offer Incentive Programs to the End Users.  
7. “Discloser” means a party that discloses or provides Confidential Information pursuant to these Terms.
8. “Documentation” means all user manuals, operating manuals, technical manuals and any other instructions, specifications, training documents or materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, support, technical or other components, features or requirements of the Platform. “End User” means each individual who is permitted by Customer to utilize the Platform for such Incentive Programs as each Customer may authorize.
9. “Incentive Program” means the Merchant’s offerings to be posted on the Platform and as described on the Order Form. 
10. “Intellectual Property” or “Intellectual Property Rights” means rights associated with all or any of the following anywhere in the world, whether or not filed or registered: (i) patents, patent applications, and inventors’ certificates; (ii) copyrights (including moral rights and author’s rights), works of authorship, copyright registrations and applications; (iii) database rights; (iv) know-how, trade secrets, and rights in and to confidential information; (v) industrial designs (including utility models); (vi) trademarks, trade names, service marks, logos, Internet addresses (URLs), and the goodwill associated with them; (vii) semi-conductor topography rights; (viii) rights of publicity; and (ix) divisions, continuations, renewals, reissuances and extensions of any of the foregoing (to the extent applicable); and (x) any other proprietary rights relating to intangible property anywhere in the world.
11. “Merchant Data” means Merchant Confidential Information and Authorized User data provided by or obtained on behalf of Merchant for purposes of Merchant’s use of the Platform, excluding Usage Data as defined in Section 2.5. 
12. “Offering” means any product or service which is provided by Olive, including its Platform and Documentation. 
13. “Order Form” means an agreement between the parties that references and incorporates these Terms and describes the Offering(s) or service(s) being provided to Merchant, together with all exhibits, schedules, and other attachments to that agreement. Order Forms may be called order forms, subscriptions, service orders, statements of work, or another name. 
14. “Platform” means (i) the technology offered as a platform-as-a-service and its related functionality that provides individuals an opportunity to use an easy and automated micro-saving and micro-giving service and provides organizations an opportunity to avail individual transaction information to offer such individuals various offers or guide individual behavior to certain outcomes, and (ii) all the services related to the provision of such functionality to a Merchant and online portal access, except for certain Support Services. 
15. “Platform Subscription” means the subscription purchased by Merchant to Olive’s Platform and related Documentation pursuant to an Order Form. “Recipient” means a party that receives Confidential Information of Discloser pursuant to these Terms.  
16. “Support Services” means the ongoing maintenance and technical support services provided by Olive for the Platform as required to meet the provisions of the Service Level Agreement outlined in Schedule A Service Level Agreement.
17. “Taxes” mean all present and future taxes, duties, import deposits, assessments, and other governmental charges (and any related penalties and interest not attributable to the fault or delay of Olive), however designated, that are now or hereafter imposed by or under any governmental authority or agency that are: (i) associated with the performance by Olive of its obligations under these Terms; (ii) associated with the payment of any amount by Merchant to Olive pursuant to these Terms; (iii) based on the license or use of any Offering or service; or (iv) associated with the importation of any Offering into or use of any Olive-provided service within a country other than the that in which Olive is incorporated, excepting only (a) Olive's corporate franchise taxes and taxes imposed on Olive’s net income by the governmental authorities or agencies in any jurisdictions in which Olive is required to pay those taxes; (b) withholding, employment, and payroll taxes relating to Olive’s employees; and (c) personal property taxes on Olive property. 
18. “Third Party” means a party whose services are used by Olive to operate the core functionalities of the Platform. Third Parties include, but are not limited to cloud services providers.

 

Article 2 - LICENSE GRANTS AND RESTRICTIONS

2.1 Platform and Documentation.

1. Olive hereby grants to Merchant, effective during the Term, a personal, non-exclusive, non-transferable, non-sublicensable, limited license to use the Platform and Documentation for the purpose of offering its Incentive Program to the End Users.    
2. The Platform may include features or functionality that interoperate with online services operated by Third Parties (such services, “Third Party Services''), pursuant to agreements between Olive and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Olive does not control. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Any such modification, suspension or termination shall not affect any payment obligations under these Terms and Olive shall have no liability with respect to any change in such Third Party Agreements and no change in a Third Party Agreement will be, in its own right, a legitimate excuse for Merchant to terminate these Terms. Unless such change has a material and repetitive adverse effect on the Platform services which the Merchant is utilizing. Without limiting the foregoing, Merchant is responsible for ensuring that Merchant  use of Platform in connection with Third Party Services complies with all policies, terms and rules applicable in the Third Party Agreements.    

2.2 Conditions of Use.  

Merchant ’s right to access and use the Platform is subject to the following conditions.  Merchant will not do any of the following:  

1. violate the terms of any agreement with a Third Party that provides a service which is integral to the Merchant ’s use of the Platform;
2. transfer, assign, sublicense, lease, or distribute to any other person any of its rights to use the Platform or Documentation; 
3. sell, rent, license or lease the Platform or Documentation;
4. make the Platform or Documentation available to any person who is not an Authorized User; 
5. copy, reproduce, transmit or download all or any feature, design or graphic in, the Platform, or Documentation;
6. in any way modify, adapt, translate, or make derivative works from or of the Platform or Documentation or otherwise reverse engineer, decompile, disassemble, or otherwise attempt to reduce any object code of any of the foregoing to human perceivable form or permit others to do so;
7. access or use the Platform or Documentation (i) in order to build a competitive solution or to assist a Third Party to build a competitive solution, or (ii) to load test the Platform in order to test scalability or exceed the usage limits which may be specified by Olive; 
8. use the Platform or Documentation in a manner that violates any foreign, federal, state, provincial or local law or regulation;
9. permit the Platform to be used for or in connection with any facility management, service bureau, or time-sharing purposes, services or arrangements, or otherwise used for processing data, hosting or other information providing for or on behalf of any Third Party;
10. remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Platform or Documentation; 
11. incorporate the Platform or Documentation or any portion thereof into any other materials, Offerings, or services, without Olive’s explicit approval;
12. transmit through the Platform unlawful, immoral, libelous, tortious, infringing, defamatory, false, threatening, vulgar, or obscene material or harmful to minors, or send spam or any other form of duplicative and unsolicited messages through the Platform; 
13. transmit to or through the Platform material containing software viruses or other harmful or deleterious computer code, routines, files, scripts, agents, or programs that may damage, intercept or expropriate any data or system;
14. interfere with or disrupt the integrity or performance of the Platform or the data contained therein; 
15. attempt to gain unauthorized access or attempt to exceed an existing authorization to access the Platform; or 
16. except for rights provided to Authorized Users as permitted in these Terms, allow any third party to use any user identification(s), and/or password(s), issued to Merchant for access to the Platform.  

2.3 Users.   

Merchant is responsible for identifying and authenticating all Authorized Users, for approving access by such Authorized Users to the Platforms, for controlling against unauthorized access, and for maintaining the confidentiality of user names and passwords;

2.4 Secure Access.  

Olive will use commercially reasonable security technologies (such as encryption, password protection and firewall protection) in providing the Platform, and Merchant shall comply with the applicable Olive security guidelines and procedures made known to Merchant through the Platform or otherwise.  Merchant agrees that Olive does not control the transfer of data, including but not limited to Merchant Data, over telecommunications facilities, including the Internet, and Olive does not warrant secure operation of the Platform or that such security technologies will be able to prevent Third Party disruptions of the Platform.

2.5 Use of Merchant Data and Grants by Merchant.  

Olive shall own all right, title and interest in and to all data collected or generated by Olive in connection with the operation of the Platform and Merchant’s use thereof (“Calculated Data”), together referred to as “Usage Data”. Olive shall hereby grants Merchant a personal, non-exclusive, non-transferable, non-sublicensable license to the Calculated Data. Usage Data does not include Authorized User or End User account registration information. Olive will not disclose Usage Data to any third party in a manner that identifies Merchant or any End User without Merchant’s consent other than (i) except in instances when the Parties agree to the contrary, disclosure to Olive’s third party service providers who use such data for the benefit of Olive and subject to reasonable confidentiality terms; or (ii) as may be required by law or legal process.

Merchant hereby grants Olive the worldwide right during the Term to use, reproduce, distribute, transmit and make derivatives of the Merchant Data solely: (a) in connection with Olive’s provision of the Platform, Support Services, hosting of Merchant Data (if applicable Platform requires), and (b) for internal analytic, statistical, security, quality control, product development and similar internal purposes. Merchant will provide Olive all Merchant Data necessary to perform the Platform and Support Services, as applicable.   

2.6 Merchant Data Protection.

Olive shall not use or process Merchant Data except to perform and provide the Platform and Support Services and for the purposes authorized in these Terms or related Order Form and Data Processing Agreement.  Olive shall maintain and implement security procedures and controls with respect to the Platform and with respect to any Merchant Data in accordance with Section 2.4 and shall provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure of or access to Merchant Data.  Olive will perform those obligations pursuant to the Olive Data Processing Agreement attached hereto as Schedule B (“DPA”). The parties agree to comply with the terms of the DPA in respect of the processing of Personal Information (as defined in Schedule B) and the Merchant shall be responsible for ensuring that it shall obtain all required consent and/or provide all necessary required notifications to all relevant data subjects (Authorized Users and End Users) as required under section 2.3(c) of these Terms,  in accordance with Schedule B, and any other Third Party Agreements to which it is a party. In the event of any conflict or ambiguity or inconsistency between the terms of these Terms (excluding Schedule B) and the terms of Schedule B, the terms of Schedule B shall prevail so far as it relates to the subject matter of Schedule B.  

2.7 Reservation of Rights. 

Olive reserves all rights not expressly granted to Merchant under these Terms. Unless otherwise expressly provided, all Intellectual Property Rights in the Offering, any products, services custom code, other deliverables, or know how owned or developed in whole or in part by Olive or any Affiliate of Olive are retained exclusively by Olive or that Affiliate. Subject to Olive's obligations with respect to Merchant's Confidential Information, Olive and its Affiliates are free to use any ideas, concepts, techniques, and know-how developed pursuant to these Terms for themselves and for other Merchants.

Article 3 - INCENTIVE PROGRAM ADMINISTRATION

3.1 Posting 

Merchant shall be responsible for positing its Incentive Programs onto the Platform. Merchant shall be solely responsible for the Incentive Programs that posts, and the details, terms and obligations of the Merchant associated therewith. 

Olive shall provide the Customers with access of a full list of merchant programs, which shall include each Incentive Program posted by Merchant. The Customers shall, in their sole discretion, select merchant programs to offer to End Users. Each End User shall have access to a full list of merchant programs previously selected by the Customer, and may, in its sole discretion, select the merchant programs in which the End User will participate.

The Merchant acknowledges that Olive will not be responsible for ensuring the Incentive Programs operate as intended by the Merchant, nor will Olive be responsible for preparing any terms or details of the Incentive Programs. Merchant further acknowledges that Olive cannot guarantee the success of a particular Incentive Program as it is wholly dependent on its selection by Customers and End Users. 

3.2 Transactions and Payment

Throughout the Term, Olive shall provide notify Merchant in the event an End User makes a purchase eligible for some reward through the Merchant’s program posted on the Platform. Merchant shall have 30 days from the notice to review each purchase to ensure purchases satisfy program requirements, and shall notify Olive in writing of any disputed purchases. Any purchases that have not been disputed by the Merchant shall be deemed accepted and any rebates or other amounts offered in the Merchant’s program shall be invoiced in accordance with Article 10. 

3.3 Reporting 

Olive shall provide the Merchant with a monthly report on each program posted by the Merchant on the Platform. The monthly reports shall include the following: (i) a summary of the Customers that have selected the Merchant’s program to offer to the End Users, (ii) the number of End Users that have selected to participate in the Merchant’s program, and (iii) the total dollar value of purchases made using the program. 

Article 4 - PROTECTION OF CONFIDENTIAL INFORMATION

4.1 Purpose for Disclosure. 

Recipient may use Confidential Information of the Discloser only for the purposes of exercising Recipient's rights and fulfilling Recipient's obligations under these Terms.

4.2 Exceptions. 

Recipient’s obligation under these Terms to treat information as Confidential Information does not apply to information that: (i) is already known to Recipient at the time of disclosure and was not obtained, directly or indirectly, from Discloser; (ii) is independently developed by Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is obtained by Recipient from another source without a breach of any obligation of confidentiality owed by that source to Discloser; or (iv) is or becomes publicly available through no wrongful act of Recipient or any party that obtained the information from Recipient. If Recipient is served with a subpoena or other legal process, court, or governmental request or order requiring disclosure, or is otherwise required by law or securities exchange requirement to disclose, any of Discloser’s Confidential Information, Recipient shall, unless prohibited by law, promptly notify Discloser of that fact and cooperate fully (at Discloser’s expense) with Discloser and its legal counsel in opposing, seeking a protective order, seeking to limit, or appealing the subpoena, legal process, request, order, or requirement to the extent deemed appropriate by Discloser. Recipient may comply with the subpoena or other legal process or requirement after complying with the foregoing sentence, but only to the extent necessary for compliance. A non-public disclosure made pursuant to the foregoing sentence will not, by itself, remove any Confidential Information from the protections of these Terms. 

4.3 Limitations on Disclosure and Use. 

Recipient shall use the same degree of care, but no less than a reasonable degree of care, to protect against the unauthorized disclosure or use of Discloser’s Confidential Information as it uses to protect its own confidential information of a similar type. Recipient shall disclose Confidential Information of Discloser only to its employees or independent contractors who have a need to know for the above stated purpose, and who are bound by obligations of confidentiality no less restrictive than the terms of these Terms. Recipient shall not remove any confidentiality or proprietary notices from Discloser’s Confidential Information. If Recipient provides Discloser with comments, suggestions or other input regarding Discloser’s Confidential Information or Intellectual Property, Discloser will have an unrestricted, worldwide, royalty-free right to use those comments, suggestions, or other input for any purpose and in any manner, and to authorize others to do so.  

4.4 Injunctive Relief. 

The parties acknowledge that the remedies at law available for the protection of Confidential Information or Intellectual Property may be inadequate, and, without limiting any rights available at law, each party is entitled to seek injunctive relief for any breach of these Terms relating to the protection of its Confidential Information or Intellectual Property Rights. 

Article 5 - REPRESENTATIONS AND WARRANTIES

5.1 Representations. 

Each party represents that: (i) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) it has the power and authority to enter into and perform all of its obligations under these Terms, and (iii) this Terms has been signed by its duly authorized representatives who are able to bind their respective companies. The foregoing representations also apply to each Order Form. 

5.2 Warranties.

Subject to Merchant’s Cooperation, Olive warrants that it will use commercially reasonable efforts to provide the Platform in accordance with its Documentation in all material respects during the Term. Merchant must report any breach of this warranty within thirty (30) days after such breach.  For any breach of this warranty, Merchant’s exclusive remedy, and Olive’s entire liability, shall be at Olive’s option to use commercially reasonable efforts to: (a) re-perform the applicable Service at no additional cost; or (b) modify the Platform to substantially conform to the Documentation. See Schedule A for applicable Service Levels.

5.3 Warranty Exclusions.  

The warranty above shall not apply (i) if the Platform is not used in accordance with these Terms or the Documentation, (ii) if the non-conformity is caused by Third Party products or services, (iii) to any modification of the Platform not performed by Olive, or (iv) to any combination by Merchant of the Platform with Third Party products or services not approved by Olive in writing.

5.4 Warranty Disclaimer.  

Except for the express Warranties stated above in Section 4.2 of this Terms, Olive does not make any warranties, express or implied, statutory or otherwise, regarding the Platform and hereby disclaims any and all express and implied warranties, representations or conditions, including but not limited to any warranties of merchantability, suitability, fitness for a particular purpose and any warranty arising from a course of dealing, non-infringement, usage or trade practice or any representation regarding the results to be achieved from the use of the Platform. Olive does not guarantee that the Platform will perform error-free or uninterrupted, or that it will correct all service errors. Merchant acknowledges that Olive does not control the transfer of data over communications facilities, including the internet, and that the Platform may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Olive is not responsible for any delays, delivery failures, or other damage resulting from such problems.

Article 6 - NO LIABILITY

Merchant is solely responsible for results obtained from the use of the services and for conclusions drawn therefrom, and Merchant acknowledges that Merchant is responsible for the selection of the Platform to achieve Merchant’s intended results.  Merchant acknowledges that it is solely responsible for deciding to use, accept or reject the output from the Platform.  Notwithstanding anything contained herein to the contrary, Olive shall have no liability to Merchant, its Merchants, employees, or any other Third Party arising from or related to the output of the Platform or the results of such output.  The foregoing shall apply regardless of whether such damage is caused by the conduct of Merchant and/or its Authorized Users or by the conduct of a Third Party using Merchant’s access credentials.

Article 7 - THIRD PARTY COMPONENTS AND EXTERNAL WEBSITES

The Platform relies on receipt of data from Third Party Software and/or use of other Third Party technology that is made available to Merchant as part of the Platform (“Third Party Components”).  Merchant may only access the functionality of the Third Party Components as part of and in the course of receiving the Platform.  Merchant may not make or attempt any direct access to any such Third Party Components other than in connection with its limited rights to the Platform. All Third Party Components are the property of their respective Third Party suppliers, and if required under the Platform Merchant must agree to and comply with license terms of the Third Party suppliers.  Such Third Party suppliers reserve all rights to the Third Party Components, including all related Intellectual Property Rights therein. Merchant agrees not to contest the ownership of any Third Party Components nor use any trademark or service mark belonging to a Third Party supplier.  All limitations, restrictions and obligations applicable to the Platform set forth in these Terms shall also apply to Merchant’s use of the Third Party Components.  Further, the Platform may contain links to external websites and information provided on such external websites by Third Party service providers.  Olive shall not be responsible for the contents of any linked website, or any changes or updates to such sites. Merchant further agrees that Olive shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Merchant’s use of or reliance on any information, data stream, goods or services available on or through any such linked website or any such Third Party Component. 

Article 8 - INDEMNIFICATION

8.1 Intellectual Property Indemnification.  

Unless otherwise indicated in an Order Form, and subject to Sections 7.2and 7.4below, Olive shall defend at its own expense any action against Merchant brought by a third party to the extent the action is based upon a claim that an Offering directly infringes any North American issued patent or copyright, or misappropriates any trade secret recognized under law, and Olive will pay those costs and damages finally awarded against Merchant in the action that are specifically attributable to that claim, or those costs and damages agreed to in a monetary settlement of the action that are specifically attributable to the claim. 

8.2 Conditions. 

To be entitled to indemnification under this Terms, Merchant must: (i) notify Olive promptly in writing of the action; (ii) give Olive sole control of the defense of the action and any related settlement negotiations; (iii) cooperate, as Olive may reasonably request, in defense or settlement negotiations; and (iv) be and remain in compliance with the material terms of these Terms. 

8.3 Options.

If any Offering becomes, or in Olive’s opinion is likely to become, the subject of a claim subject to indemnification under these Terms, Olive may, at its option and expense, either: (i) procure for Merchant the right to continue to exercise the Offering license; (ii) replace or modify the Offering so that it becomes non-infringing; or (iii) if neither option (i) or (ii) is available on reasonable terms, terminate Merchant's license or subscription for the Offering concerned. Unless otherwise provided in the applicable Order Form, if Olive exercises option (iii), Olive will refund to Merchant the unearned portion of any prepaid term license fees and support and maintenance fees, and will reimburse Merchant for a pro-rated portion of any perpetual license fees paid for the Offering on a straight-line basis.  

8.4 Exclusions. 

Olive has no obligation with respect to any claim based upon: (i) any violation of the terms herein; (ii) any combination or use of any Offering with other products, equipment, software, or data not supplied or approved in writing by Olive; (iii) any modification of an Offering made pursuant to Merchant specifications or any other modification made by any entity other than Olive or its Affiliates; (iv) any unauthorized use or the Offering or use other than in accordance with the Documentation.  

8.5 Merchant Indemnification. 

Subject to the terms of this Section 7.5, Merchant shall defend at its own expense any action against Olive brought by a Third Party to the extent the action is based upon a claim that (1) any data, information, documentation software or technology provided to Olive by Merchant, or (2) Olive’s adherence to specifications or requirements provided by Merchant, infringes the Intellectual Property Rights of a Third Party, and Merchant will pay those costs and damages finally awarded against Olive in the action that are specifically attributable to that claim, or those costs and damages agreed to in a monetary settlement of the action that are specifically attributable to the claim.  To be entitled to indemnification under this Section 7.5, Olive must notify Merchant promptly in writing of the action.  The parties will cooperate in the defense of such claim.  

8.6 Entire Liability. 

This Article states Olive's entire liability and Merchant's sole and exclusive remedy for infringement and misappropriation claims and actions.

Article 9 - LIMITATION OF LIABILITY

9.1 Liability.

In no event will either party be liable under this agreement under any theory of recovery (including without limitation breach of contract, breach of warranty, negligence, tort, and strict liability) for any indirect, incidental, special, exemplary, consequential (including without limitation loss of data, use, income, profit, or savings) or punitive damages arising out of or in connection with this agreement or any offering, service, or deliverable provided by Olive under these Terms, even if the responsible party had been advised of the possibility of those types of  damages or even if those types of damages were reasonably foreseeable, provided, however the foregoing limitation is inapplicable to damages arising from or as a result of an infringement or violation of Olive’s intellectual property rights (including breach of any license grant or restrictions for any offering or service). 

9.2 Limitation.

Except to the extent that this limitation is prohibited by applicable law, the total aggregate liability of either party for all claims arising under or related to these Terms, under any and all theories of liability (including without limitation breach of contract, breach of warranty, negligence, bailment, tort, and strict liability), will not exceed the total amount paid by Merchant (excluding implementation fees and reimbursed expenses) for the Offering(s), service(s), or deliverable(s) to which the claim(s) relate(s) during the 12 months immediately preceding the date of the most recent claim that gave rise to the liability.  Notwithstanding the foregoing, there is no limitation of liability for damages arising from or as a result of an infringement or violation of Olive’s intellectual property rights (including breach of license grant or restrictions), or in case of Merchant, its indemnification obligation under Article 7.  Merchant's obligation to pay amounts owed to Olive for offerings and services provided by Olive under these Terms or otherwise (including costs of collection of unpaid amounts) is independent of and not subject to the limitation noted in this Section 8.2.  

Article 10 - PAYMENT TERMS

10.1 Invoices and Payments. 

All fees and charges (other than expenses) will be set forth in the applicable Order Form. Except as otherwise provided in the applicable Order Form, all undisputed fees, charges, and expenses must be paid by EFT/ ACH Payment, wire transfer, bank draft or certified cheque within 30 days of the date of an invoice; any disputes in respect of an underpayment or overcharging may not be disputed by the aggrieved party after 15 days of receipt of applicable invoice or settlement calculations on an applicable statement. All amounts are payable in the currency indicated in the applicable Order Form and in accordance with the instructions provided in the invoice or other instructions provided by Olive; Where necessary, the foreign exchange rate to be applied will be the commercially available rates of the Royal Bank of Canada as of the date of the applicable invoice or applicable statement which sets out the payable amounts. Without prejudice to its other rights and remedies, if Olive does not receive any payment by its due date, Olive may assess a late payment charge on the unpaid amount at the rate of 1.5% per month or the highest rate allowed under applicable law, whichever is less. In addition, Olive may terminate the relevant Order Form, including any licenses granted to Merchant therein, or terminate the service concerned, but not until Olive has given Merchant written notice, and the amount remains unpaid 30 days after Olive gives the notice.  All fees paid hereunder are non-refundable without any right of set-off or deduction. Merchant shall reimburse Olive for all reasonable costs related to any proceedings to collect any past-due amounts, including without limitation attorneys’ fees and expenses.  Olive reserves the right to require Merchant to provide a letter of credit in an amount and a form specified by Olive, where Olive deems it necessary. 

10.2 Costs and Expenses. 

Prices do not include reasonable travel and associated out-of-pocket expenses incurred by Olive in connection with these Terms, which Merchant agrees to reimburse at Olive's actual cost.  If any amounts are not paid to Olive by the due date, Merchant will be obligated to pay and reimburse Olive for the cost of collection and enforcement related to such past due payments, including Olive’s reasonable attorneys’ fees and costs. 

10.3 Taxes and other Charges.   

All charges under these Terms are stated exclusive of any applicable Taxes, each party is responsible for its own tax obligations.

10.4 Withholding Taxes.  

To the extent Merchant is required by applicable tax law to withhold income Taxes on any payment made to Olive, Merchant may withhold such Taxes to the extent such Taxes (i) do not exceed the appropriate withholding amount under relevant tax law or, if applicable, the income tax treaty between the country in which Olive is incorporated and the country in which Merchant is incorporated or is receiving the Offerings or Olive services, as applicable, and (ii) qualify as a creditable foreign income tax for Olive under applicable law. Merchant shall send Olive the appropriate certified tax receipt or other acceptable documentation suitable for Olive to obtain a foreign income tax credit promptly upon payment of such Taxes or as required under the laws applicable to Merchant. If Olive does not receive a certified tax receipt issued by the taxing authority evidencing such payment, or other such acceptable documentation suitable for Olive to obtain a foreign income tax credit, within 30 days after the later of: (1) the date of the invoice or (2) when required to be issued under the law applicable to Merchant, Merchant will be responsible for paying the full invoice amount to Olive.

10.5 Verification and Audit Rights.   

Each party shall during the Term and for 2 years after, maintain adequate books, records, and accounting practices and systems that will allow proper calculation, documentation, and reporting of payments due under these Terms. Each party will ensure that at a commercially reasonable advance request, will   facilitate auditing of those books, records, and systems, and of Merchant's use of the Offering(s) solely to the extent of Merchant’s use of the Offering(s), the fee payment obligations of Merchant and any data use requirements or limitations as applicable under these Terms.

Article 11 - TERM AND TERMINATION

11.1 Term. 

Unless otherwise terminated as specified in this article, the initial term of these Terms (“Initial Term”) will commence on the Effective Date and continue for a period of three years. Thereafter, these Terms will automatically renew for successive one-year terms (each an “Renewal Term” and together with the Initial Term, the “Term”) unless either party notifies the other in writing at least 60 days prior to the end of the Initial Term or then-current Renewal Term that it elects to have the Terms expire at the end of that term. Notwithstanding anything contained in this Terms or any Order Form to the contrary, the Term shall continue and the provisions of this Terms remain in effect for as long as there is an outstanding Order Form not yet expired or terminated. 

11.2 Termination of an Offering.  

A party may terminate an Offering by terminating the applicable Order Form by providing written notice to the other party upon the occurrence of any of the following events:

1. Uncured Breach. The other party has committed a material breach of terms of these Terms or any specific terms applicable solely to the Offering and has failed to remedy the breach within 30 days after receipt of written notice from the non-breaching party identifying the breach and requiring it to be remedied. 
2. Insolvency. The other party ceases to conduct business in the ordinary course or is declared insolvent or bankrupt, or makes an assignment of substantially all of its assets for the benefit of creditors, or has a receiver appointed over all or substantially all of its assets, or any proceeding is demanded by, for, or against the other party under any provision of bankruptcy or insolvency legislation.
3. Violations. The other party has committed a material breach of the provisions of these Terms relating to the protection of Confidential Information or Intellectual Property with respect to that Offering.  In addition, Olive may immediately suspend its performance under or terminate any Order Form if Merchant (i) violates the terms of any applicable license or license restriction, or (ii) violates any applicable import, export, or re-export laws or regulations. 

11.3 Termination of Agreement.  

Notwithstanding anything to the contrary in these Terms, if Merchant is in breach of any provision of these Terms involving a failure of payment or violation of Olive’s Intellectual Property Rights (including breach of any license grant or restriction), or in breach of any Third Party Agreements to which it is a party and such Third Party Agreement’s breach creates conditions, which in Olive’s sole discretion, cannot allow Olive to provide the Platform under these Terms, and fails to remedy the breach within 30 days after receipt of written notice, then Olive may at its option terminate (i) the Platform Subscription subject to the breach, or (ii) this Terms.

11.4 Effect of Termination or Expiration. 

Upon termination or expiration of any Offering for any reason: (i) all licenses or use rights granted to Merchant in respect of that Offering will terminate immediately, as will all Olive support and maintenance obligations; (ii) Merchant shall immediately cease using all affected Offering(s) and related documentation; (iii) as applicable, Merchant shall remove all copies of the affected Offering(s) and related documentation from Merchant’s computers and systems; (iv) Merchant shall either (a) irretrievably destroy all copies of the affected Offering(s), related documentation, and other related Olive Confidential Information and Intellectual Property in Merchant’s possession; or (b) at Olive's option, return to Olive all copies of the affected Offering(s), related documentation, and other Olive Confidential Information and Intellectual Property in Merchant’s possession; (v) Merchant shall provide to Olive a written certification signed by an authorized officer of Merchant certifying that Merchant has complied in full with the foregoing; and (vi) all fees and other charges provided for in these Terms or in any Order Form will become immediately due and payable 

11.5 Survival. 

The following provisions of this Terms will survive expiration or termination of this Terms: Article 1 (Definitions), Section 2.8 (Reservation of Rights), Article 3 (Protection of Confidential Information), Section 4.4 (Warranty Disclaimer), Article 7 (Indemnification), Article 8 (Limitation of Liability), Article 9 (Payment Terms), Section 10.4 (Effect of Termination), Section 10.5 (Survival), and Article 11 (Miscellaneous), except Section 11.4 (Press Releases; Publicity), Section 11.16 (Resolution of Disputes) and Schedule B (Data Processing Agreement).  In addition, notwithstanding the expiration or termination of this Terms, this Terms will continue to apply to any Order Form still in effect at the time of the termination or expiration of this Terms. 

Article 12 - MISCELLANEOUS

12.1 Export.  

In addition to the requirements contained in the Terms, Merchant will not export or re-export, directly or indirectly, any Offering, Olive Confidential Information or Deliverables contrary to all export laws. 

12.2 Relationship of the Parties. 

The relationship between the parties is that of independent contractors. This Agreement is not to be construed as creating any partnership, joint venture, agency, or any other form of legal association that would impose liability upon one party for the act or failure to act of the other party. 

12.3 Press Releases; Publicity. 

Olive may issue a press release stating factual information regarding the relationship between Olive and Merchant at the time this Terms or any Order Form is signed. Olive shall first submit the press release to Merchant for Merchant’s approval. The parties may issue additional press releases as mutually agreed by the parties. All press releases or other publicity sought to be issued by either or both parties pursuant to this section must, prior to release, be reviewed and approved by each party, which approval may not be unreasonably withheld or be delayed more than 5 business days. Subject to Merchant’s prior written consent (which must not be unreasonably or arbitrarily withheld), Olive may include Merchant’s name in its marketing and promotional materials regarding the availability of any of its Offerings or services to other Merchants. In addition, Merchant agrees and provides consent to Olive to (a) produce and distribute a written case study describing how Merchant business used and benefited from the Offering, (b) Merchant’s executive(s) participation in one or more interviews leading to the publication of an article in a reputable business media outlet facilitated by Olive, where Merchant describes the role of Offering, and results, (c) participation of Merchant executive(s) in one or more video interviews in which its executive(s) tell the story of Merchant’s strategy and the role of Offering in Merchant’s success, with such videos to be published on the Merchant’s website, (d) promote Merchant as (only upon Olive’s request) a reference site which includes discussing the Offering or Service with prospective Olive Merchants and other interested parties, providing testimonial or other quotes regarding the performance of the Offering either in person, telephone, marketing materials or other publications, and (e) present on its own or with Merchant at industry and market conferences, meetings and other gatherings.  Merchant hereby consents to the use of its name and its feedback in connection with effectuating the intent of the foregoing and will promptly respond to any requests from Olive.  Olive will provide prompt notice in order to give Merchant adequate time to accommodate and/or respond to the reference site request.  Olive will pay for all reasonable costs associated with travel and accommodations in Merchant’s performance of acting as a reference.  All publications referenced above in (a) that include any information of Merchant and/or Olive must be pre-approved by Merchant before their publication, such pre-approval shall not be unreasonably withheld.

12.4 Limitation of Actions.  

No action, regardless of form, arising out of or relating to these Terms may be brought by Merchant more than two years after the cause of action has accrued. 

12.5 No Waiver. 

No delay or omission by either party in exercising any right under these Terms will be construed as a waiver of that right. Even if either party waives a breach or default under these Terms, that party is not deemed to have waived any later or similar breach or default. No waiver will be effective unless in writing and signed by the party waiving the right. 

12.6 Compliance with Laws. 

Merchant is solely responsible for compliance with all laws relating to Merchant's use of any Offering, deliverable, or service provided by Olive under these Terms, including but not limited to laws and regulations relating to privacy and export control.   

12.7 Governing Law. 

This Agreement, and any issues arising under or in any way relating to these Terms, will be governed by and construed in accordance with the laws of the Province of Ontario, Canada and the federal laws of Canada therein, without regard to principles of conflicts of law or international law, including without limitation the 1980 United Nations Convention on Contracts for the International Sale of Goods, as revised, which the parties expressly agree does not apply to these Terms. 

12.8 Notices. 

Any notices required to be given in writing under these Terms must be sent to the recipient’s address, e-mail or facsimile (fax) number for notices set forth below. Written notices must be sent by personal delivery, mail (with return receipt provided), major overnight delivery carrier (with return receipt provided), e-mail (only to e-mail provided below) or fax (only if a fax number is provided below). Notices will be deemed given on the actual date of delivery, as indicated by a delivery receipt, e-mail date or fax confirmation, but any notice delivered by fax must be promptly confirmed in writing using another method for giving notice provided in this section. Either party may change its address, e-mail or facsimile number for notices at any time by giving written notice to the other party as provided in this section.

Notices to be sent to Olive: 

Attention: CEO

Address: 92 King Street South, Waterloo, ON NJ2 1P5

Email: support@oliveltd.com 

Notices to be sent to Merchant shall be sent to the address provided on the Order Form and addressed to the contact person on the same.   

12.9 Assignment; Delegation. 

1. Neither party has the right, without the prior written consent of the other party, to assign or transfer these Terms, or any part of these Terms.  Except as provided herein, any attempt to assign or transfer all or any part of these Terms without first obtaining that written consent will be void and of no force or effect.
2. In the event of a change of control (where “control” means ownership of a majority (51% or more) of the outstanding voting common stock of the subject entity) of Merchant, or if Merchant is merged with, is acquired by, or acquires another entity, or undergoes a reorganization or otherwise acquires the right to process the business of another entity, each such event will be deemed an assignment by Merchant subject to this Section, and Merchant shall not permit that other entity to use the Offering(s) or process any data from that entity through the Offering(s) (either combined with Merchant’s data or as a separate portfolio), or otherwise make any expanded use of any Offering, service, or deliverable provided by Olive as a result of that event unless and until Olive provides its written consent.  
3. Notwithstanding the foregoing, Olive has the right to assign these Terms to any Olive Affiliate or by merger, reorganization, change of control, consolidation, or sale of all or substantially all the assets of Olive or the applicable division or line of business, provided Olive must require the Olive Affiliate or controlling entity to adhere to all obligations imposed by these Terms upon Olive with respect to that data and other information 

12.10 Force Majeure; Cooperation. 

Notwithstanding anything to the contrary in these Terms, except for Merchant's obligations to pay amounts due under these Terms, neither party will be deemed to be in default of any provision of these Terms for any delay, error, failure, or interruption of performance due to any act of God, terrorism, war, insurrection, riot, boycott, strike, or other labor or civil disturbance, interruption of power service, interruption of communications services, problems with the Internet, epidemic, pandemic, act of any other person not under the control or direction of either party, or other similar cause. The party subject to any of the foregoing causes shall give the other party reasonable written notification of any resulting material or indefinite delay.  In addition, Merchant acknowledges that Olive's performance under these Terms is dependent on Merchant's Cooperation. 

12.11 No Third Party Beneficiaries. 

Nothing in these Terms is to be deemed to create any right or benefit in any person not a party to these Terms. 

12.12 Article and Section Headings. 

The article and section headings in these Terms are for reference only, and do not form part of these Terms. 

12.13 Interpretations.

In these Terms, words importing the singular number only include the plural and vice versa and words importing any gender includes all genders. The term “including” means “including without limiting the generality of the foregoing”, and “shall” and “will” means “must” and not “may”.

12.14 Construction; Severability. 

This Agreement is not to be more strongly construed against either party, regardless of who is more responsible for its preparation. If any provision of these Terms is held to be unenforceable, unlawful, or invalid in any respect, then that provision will be deemed ineffective only to the extent of the illegality or invalidity, without invalidating the remainder of that provision or any of the remaining provisions of these Terms. If a provision is determined to be unlawful or invalid in any respect, then that provision is to be deemed severable to the extent it is unlawful or invalid, and the enforceability, validity, and lawfulness of the remaining portion of that provision or any other provision of these Terms will not be impaired.

12.15 Entire Agreement; Order of Precedence. 

This Agreement, together with its Schedules and the Order Form,  represent the complete agreement of the parties and supersedes all prior or contemporaneous agreements, proposals, understandings, representations, conditions, and communications (oral or written), as well as the terms of all existing or future purchase orders and acknowledgments. Any other terms, conditions, supplements, modifications, or amendments to these Terms will not be binding upon either party unless expressly set forth in a writing signed by authorized representatives of Merchant and Olive. In the case of any conflict between the provisions of this Terms and an Order Form, with respect to the subject matter of that Order Form, the provisions of the Order Form control.  

12.16 Resolution of Disputes.  

In the event the Parties cannot resolve the dispute within the earlier of twenty (20) days of the origination of the dispute or ten (10) days of the commencement of direct discussions between the executive representatives of the Parties, the dispute may be referred to arbitration pursuant to Arbitration Act, 1991, S.O. 1991, c. 17 (Ontario) (the “Rules”). There shall be one arbitrator selected in accordance with the Rules. The Parties shall equally share the fees of the arbitrator and the facility fees and the Parties shall each bear their own legal costs and expenses of the arbitration; provided, that the arbitrator shall have the authority to award such fees, costs and expenses in the decision of the arbitrator. The arbitration shall be conducted in English in the City of Toronto. Notwithstanding the foregoing, each Party shall have the right to seek injunctive or other equitable relief that may be related to the breach of confidentiality obligations or violation of the intellectual property rights set forth in these Terms.

12.17 Language of the Contract and Notices. 

This Agreement has been executed in the English language. Any version of these Terms in any other language is solely for the convenience of the parties and will have no binding force or effect. Any notices given pursuant to these Terms must be in English. In case of a dispute concerning the intent, obligations, or performance of the parties under these Terms, this English language text alone must be used to resolve the dispute, and any proceedings or communications relating to such dispute must be in English. 

Schedule A

Service Level Agreement

Platform Availability	Platform to be Available 99.9% of the time, measured monthly, and excluding scheduled maintenance, or unscheduled maintenance during normal business hours (Canada East Coast time) or otherwise, for which Olive will use reasonable efforts to give the Merchant advance notice. “Available” means the Platform is up and running, and accessible by Merchant and its End Users, without interruption or undue delay. Any downtime resulting from outages of third-party connections or utilities or other reasons beyond Olive’s control will be excluded from any such calculation. Any unavailability resulting from Olive’s right to suspend the Platform in accordance with the terms of the Agreement shall be excluded from any such calculation. Downtime shall begin to accrue as soon as the Platform is unavailable to Merchant and/or its End Users, and continues until the availability of the Platform is restored. Olive shall give no less than 5 business days prior written notice to Merchant of all scheduled maintenance. Olive shall perform scheduled maintenance in such a way that any interruption of the Platform is kept to a minimum and will provide a maintenance window during which the scheduled maintenance will be carried out (which shall not exceed 60 minutes individually or 24 hours in the aggregate in any month).  For purpose of the availability, Platform does not include any beta features or administration user services such as dashboard reporting.
Service Level Failure	In the event Merchant notifies Olive of a failure by Olive to comply with the Platform Availability and within 15 days of the failure. On agreement Olive will issue Credits to Merchant per table: Monthly Availability Percentage Credits Issued 99.9% and above 0% of monthly Minimum Purchase paid by Merchant, as defined in the Order Form  Less than 99.9% and greater than or equal to 99% 10% of monthly Minimum Purchase paid by Merchant, as defined in the Order Form  Less than 99% and greater than or equal to 98% 10% of monthly Minimum Purchase paid by Merchant, as defined in the Order Form  Less than 98% and greater than or equal to 97% 15% of monthly Minimum Purchase paid by Merchant, as defined in the Order Form  Less than 97% and greater than or equal to 95% 50% of monthly Minimum Purchase paid by Merchant, as defined in the Order Form  Less than 95% 100% of monthly Minimum Purchase paid by Merchant, as defined in the Order Form  Credits will not be redeemable for cash.
Support Resources & Access	At Olive’s own expense, Olive shall provide Merchant Admin Users with: Telephone or electronic support during Olive’s normal business hours in order to help Merchant locate and correct problems with the Platform and any related software An internet-based support/ knowledgebase system generally available seven days a week, twenty-four hours a day Merchant is responsible for supporting its End Users directly (i.e. providing “Tier 1” support).
Platform Updates	Updates to the Platform are included in Platform Fees. Updates will be performed during Scheduled Maintenance only. Olive reserves the right to modify and update the features and functionality of the Platform from time to time with appropriate notice and giving Merchant the time to assess and raise concerns about the update.  If any change has a material and adverse effect on the usability or features such that it diminishes the value of the Platform to Merchant it shall be deemed an “MAE” and will: (a) not be deemed a breach by Olive of the Agreement provided Olive has given an appropriate notice (90 days), and  (b) permit Merchant to terminate the Agreement without penalty if Merchant provides Olive with 60 days notice of the MAE AND Olive does not roll back the offending changes within 45 days of receiving notice of the MAE. (c) commit to maintaining backwards compatibility where possible, however Olive may need to change features or sunset features.

 

Schedule B

Data Processing Agreement

Please refer to the Data Processing Schedule linked here.