Thank you for considering Oleria Identity Security as your trusted solution for proactive risk identification and mitigation. Before we delve into the details of this Oleria Subscription Agreement, it’s important to know that Oleria Corporation, a Delaware corporation (“Oleria”, “we”, “us” or “our”), is dedicated to providing secure and reliable identity security services. We prioritize the privacy and security of your data (you can learn more about our certifications and security practices here).
1. INTRODUCTION.
Please read this agreement carefully before using the services offered by Oleria. By clicking to accept an invitation to join an Oleria workspace (each, an “Invitation”) and/or mutually executing one or more Order Forms with Oleria which reference these terms (each, an “Order Form”), you and your organization (“Customer”) agree to be bound by these terms (together with all Invitations and/or Order Forms, the “Agreement”) to the exclusion of all other terms unless specifically otherwise stated in an Order Form. If the terms of this Agreement are considered an offer, acceptance is expressly limited to such terms.
Let's get into the specifics….
2. DEFINITIONS.
(a) “Monitored Account” or “MA” means each individual connected application account tracked and/or monitored by the Subscription Services.
(b) “Aggregate Data” means Insights and Service Information.
(с) “Authorized User” means an employee, contractor or other approved service provider who Customer has authorized to use the Subscription Services.
(d) “Customer Materials” means all information, data, content and other materials, in any form or medium that is submitted, posted, ingested, collected, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to Oleria in connection with Customer’s use of the Subscription Services, but specifically excludes, for clarity, Aggregate Data and any other Oleria IP.
(e) “Data Processing Addendum” means Oleria’s Data Processing Addendum available at https://www.oleria.com/dpa.
(f) “Insights” means any data or metadata that is derived or aggregated in deidentified form from any Customer Materials or otherwise generated from Oleria’s provision of the Subscription Services to Customer.
(g) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
(h) “Licensed Volume” means (i) the number of Monitored Accounts tracked and/or supervised by or on behalf of Customer using the Subscription Services, (ii) the number of concurrent Authorized Users permitted to access and use the Subscription Services, and (iii) such other limits, volume or other measurement or conditions of use of the Subscription Services, in each case, as set forth in the applicable Order Form.
(i) “Oleria IP” means the Subscription Services, the underlying software provided in conjunction with the Subscription Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services and Operational Information and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
(j) “Operational Information” means any written materials, specifications, release notes or system requirements and other similar materials in any form if or as provided by Oleria to Customer (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Customer.
(k) “Order Form” means the executed order form or other mutually agreed upon ordering document which references this Agreement and sets forth the applicable Subscription Services to be provided by Oleria.
(l) “Service Information” means any data that is derived or aggregated from Customer’s and/or its Authorized Users’ access to or use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.
(m) “Subscription Services” means Oleria’s proprietary adaptive identity management product, as more particularly described or identified in the applicable Order Form.
3. SUBSCRIPTION SERVICES; ACCESS AND USE.
(a) Subscription Services. Subject to the terms and conditions of this Agreement, Oleria hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 13(f)) right to access and use the Subscription Services during the Term, solely for Customer’s internal business purposes in accordance with, and subject to, the Licensed Volume.
(b) Use Restrictions. Customer will not at any time and will not permit any person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Subscription Services or Operational Information, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Subscription Services to any other person, or otherwise allow any person to use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Subscription Services or Operational Information in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Oleria for use expressly for such purposes; or (viii) use the Subscription Services, Operational Information or any other Oleria Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services.
(с) Authorized Users. Customer will not allow any person other than Authorized Users to access or use the Subscription Services. Customer may permit Authorized Users to access and use the Subscription Services, provided that: (i) the number of concurrent active users, including Authorized Users, does not exceed the Licensed Volume; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their access to and use of the Subscription Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Oleria if Customer knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Subscription Services may only be accessed and used by the specific Authorized User for whom such account is created.
(d) Monitored Accounts. Customer may use the Subscription Services for up to the number of MAs identified on the Order Form which are applied towards the applicable Licensed Volume identified on the Order Form. In providing the Subscription Services, Oleria may monitor in real-time or otherwise the number of MAs Customer has enrolled in the Subscription Services.
(e) Third-Party Services. Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Subscription Services. Oleria does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. To the extent Customer Materials are retrieved from or provided by Third-Party Services, Oleria will not be liable for the condition of such Customer Materials, including, any such Customer Materials that are retrieved from or provided by Third-Party Services that are incorrect, incomplete, corrupt, or missing. Oleria is not responsible for, and no representations or warranties are made regarding Third-Party Services. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Services. Additionally, certain features and functionalities within the Subscription Services, when enabled by Customer, may allow Oleria to create, input or modify access permissions or other settings in such Third-Party Services or other settings or configurations of Customer’s systems. By enabling such features or functionalities, Customer expressly authorizes Oleria to access, connect to and interact with such Third-Party Services and other systems on behalf of Customer in connection with the performance of the Subscription Services. Customer will remain responsible and liable for Customer’s systems and the data contained therein, including Oleria’s access thereto (in accordance with this Agreement).
(f) Reservation of Rights. Subject to the limited rights expressly granted hereunder, Oleria reserves and, as between the Parties will solely own, the Oleria IP and all rights, title and interest in and to the Oleria IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
(g) Feedback. From time-to-time Customer or its employees, contractors, or representatives may provide Oleria with suggestions, comments, feedback or the like with regards to the Subscription Services (collectively, “Feedback”). Customer hereby grants Oleria a perpetual, irrevocable, royalty-free and fully paid-up license to use and exploit all Feedback in connection with Oleria’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.
4. FEES AND PAYMENT.
(a) Fees. Customer will pay Oleria the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. Oleria reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon sixty (60) days’ prior notice to Customer (which may be sent by email). Except as otherwise provided in the relevant Order Form, Oleria will issue annual invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice.
(b) Payments. Payments due to Oleria under this Agreement must be made in U.S. dollars by wire transfer of immediately available funds to an account designated by Oleria or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Oleria may suspend Services until all payments are made in full. Customer will reimburse Oleria for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
(с) Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Oleria hereunder, other than any taxes imposed on Oleria’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Oleria hereunder, Customer will pay an additional amount, so that Oleria receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
5. CONFIDENTIAL INFORMATION.
(a) Definition. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Subscription Services and the Operational Information will be deemed Confidential Information of Oleria. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
(b) Obligations. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Oleria may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
(с) Provisions of the Agreement. The terms and conditions of this Agreement, including pricing information in an Order Form, will constitute Confidential Information of Oleria, but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
6. CUSTOMER MATERIALS AND DATA.
(a) Customer Materials and Data. Oleria acknowledges that, as between Customer and Oleria and except as set forth in Section 6(b), Customer owns and retains all right, title and interest in and to all Customer Materials.
(b) Licenses to Customer Materials. Customer hereby grants Oleria: a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, and modify Customer Materials (i) for the purpose of hosting, operating and providing the Subscription Services during the Term; (ii) to operate, monitor, provide and improve the Subscription Services and Oleria’s other related products, services and technologies, including the creation and development of additional features and functionality, as well to train, improve and validate Oleria’s algorithms and artificial intelligence and machine learning models; and (iii) to derive, aggregate or otherwise generate Insights or other Aggregate Data.
(с) Representations. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement and (ii) Oleria’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
(d) Data Processing Addendum. Customer and Oleria acknowledge and agree that the terms and conditions of the Data Processing Addendum, which are hereby incorporated by reference, governs Oleria’s processing of Personal Data (as such term is defined in the Data Processing Addendum).
7. REPRESENTATIONS AND WARRANTIES.
Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
8. INDEMNIFICATION.
(a) Oleria Indemnification. Subject to Section 8(b), Oleria will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s access to or use of the Subscription Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Oleria (including reasonable attorneys’ fees) resulting from such Claim.
(b) Exclusions. Oleria’s obligations under Section 8(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Oleria; (iv) modifications to the Subscription Services by anyone other than Oleria; or (v) combinations of the Subscription Services with software, data or materials not provided by Oleria.
(с) IP Remedies. If Oleria reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Oleria may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue to access and use the Subscription Services. If Oleria determines that neither alternative is commercially practicable, Oleria may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Oleria will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 8 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.
(d) Customer Indemnification. Customer will defend Oleria against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) use or misuse of the Subscription Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Operational Information, including, without limitation, any breach of the license restrictions in Section 2(b), and in each case, will indemnify and hold harmless Oleria against any damages and costs awarded against Oleria or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
(e) Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
9. DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUBSCRIPTION SERVICES, OLERIA IP AND OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER BY OR ON BEHALF OF OLERIA ARE PROVIDED ON AN “AS IS” BASIS, AND OLERIA MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE OLERIA IP, THE SUBSCRIPTION SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER BY OR ON BEHALF OF OLERIA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OLERIA HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, OLERIA HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. OLERIA MAKES NO WARRANTY REGARDING ANY THIRD-PARTY SERVICES WITH WHICH THE SUBSCRIPTION SERVICES INTEROPERATE. OLERIA MAKES NO WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES WILL COMPLY WITH ANY LAW; CUSTOMER IS RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAW.
10. LIMITATIONS OF LIABILITY.
(a) Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE OLERIA IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(b) Total Liability. IN NO EVENT WILL OLERIA’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE OLERIA IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO OLERIA IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT OLERIA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(с) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN OLERIA AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
11. TERM AND TERMINATION.
(a) Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
(b) Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
(с) Survival. This Section 11(с) and Sections 2, 3(b), 3 (с), 3(f), 4, 5, 6, 7, 8, 9, 10, 11(d) and 13 survive any termination or expiration of this Agreement.
(d) Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will return or destroy, at Oleria’s sole option, all Oleria Confidential Information in its possession or control, including permanent removal of such Oleria Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Oleria’s request, certify in writing to Oleria that the Oleria Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
12. TRADEMARKS.
Customer hereby grants Oleria a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Subscription Services; and (ii) Oleria’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Oleria and in case studies. All goodwill and improved reputation generated by Oleria’s use of the Customer Marks inures to the exclusive benefit of Customer. Oleria will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.
13. GENERAL.
(a) Entire Agreement. This Agreement, including its exhibits and the corresponding Order Forms, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
(b) Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the Order Form or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 13(b). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
(с) Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(d) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
(e) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Delaware, and the Parties irrevocably consent to the personal jurisdiction and venue therein.
(f) Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. In the event Customer assigns or transfers this Agreement to a successor in interest that has an active contract or subscription with Oleria for Subscription Services, Customer will require such successor interest to negotiate in good faith with Oleria for the consolidation of the provision of Subscription Services. The assignment or transfer of this Agreement does not entitle or permit the successor in interest to the Customer to use the Subscription Services in excess of the Licensed Volume. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
(g) Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(h) Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
(i) Subcontracting. Oleria may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Oleria remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Oleria will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Oleria.
(j) Export Regulation. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Subscription Services, software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.
(k) U.S. Government End Users. The Subscription Services, software and Operational Information were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Subscription Services, software and Operational Information by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue its use of the Subscription Services, software and Operational Information.
(l) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
(m) No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the Parties and their respective successors and assigns.
