Last Updated: 29/08/2022
AIVONI SAS, along with its corporate affiliates (“Oliverlist,” “AIVONI”, “we,” “our”) operates the “Service,” which is defined as any website or web page (or mobile application) on which this set of Terms appears (“Website”), and any data, services, activity or transactions that are offered, made available or facilitated through any of the above.
These Terms of Service (“Terms of Service” or “Terms”) are a legally binding agreement that applies to the Service and governs your use of the Service and your (“you” or “your”) relationship with us. You accept and agree to these Terms of Service by either:
- Accessing or using the Service;
- Clicking to accept these Terms of Service, or
- Accepting these Terms of Service in any other way.
If you violate these Terms of Service, or if you do not agree to these Terms of Service, you shouldn’t access (and you don’t have our permission to access) the Service.
In addition, if you intend to provide to us, or receive from us, data regarding European residents, please see Section 12, which you must agree to.
2. Changes to the Terms of Service
We collect a variety of information from various sources, including our Users, Information Users Submit to Us
3. Changes to the Service
We may change the features and functionality of the Service at any time. This may include adding, modifying or removing any features or functionality of the Service. The Terms of Service will apply to any changed version of the Service. We also may suspend or stop the Service altogether. In addition, we may impose or alter fees for new or existing aspects of the Service.
4. Eligibility Restrictions
To use the Service, you must have reached the age of majority in the jurisdiction where you live (in most U.S. states, that’s 18 years old). If you are under this age, you shouldn’t use the Service or provide Submitted Data (defined below) to us.
5. Your Account
You will need to set up an account in order to access most aspects of the Service, including in most cases to submit data (“Submitted Data”) or to receive data (“Output Data”). You should read the important information about the rules governing the Submitted Data and Output Data, in the sections below. Important rules also govern your account itself. First, you must only provide account information (such as your name and email address) that is your own, and that is accurate. You should keep your contact information accurate as well, so that we can contact you if we need to, such as to deliver any important notices. We also strongly recommend changing your password periodically, and that you not share your password or account credentials with anyone else.
You are solely responsible for maintaining the confidentiality of your account information, such as your username and password, and for restricting access to your computer and other devices; you agree and understand that you will be liable for any activity occurring through your account.
Business development services with appointment setting for you for a period of 1 month, tacitly renewed. The Oliverlist team offers you a service of outsourcing your commercial prospecting. In this respect, our team will carry out various prospecting campaigns by e-mail and communicate on your behalf with various prospects sourced on the basis of the target mentioned in the terms of this proposal.
7. The service includes:
- Study of the targeting
- Drafting of prospecting email sequences
- Research of addressable market data
- Compilation of verified contact data
- Commercial prospecting strategy
- Setting up a business development team
- Measurement and analysis of the conversion
- Automatic transmission of appointments
8. Additional service includes:
- Set up costs
- Creation of a highly optimized landing page for prospecting
- Unlimited Google Workspace accounts for prospecting
- Purchase and configuration of the prospecting domain
- Unlimited Oliverlist Pro accounts
The targeting used by our teams in your prospecting campaigns is that specified in your orders. As our contracts are specific to a target defined beforehand, any change of target may result in a change of contract, and therefore of pricing. We therefore ask you to ensure that the target specified above corresponds to your expectations. This target cannot be changed later. We would also like to point out that the prospected target may have to make an appointment with your sales team for several subjects, including requests for quotes, but also partnership suggestions.
10. Creation of campaigns
After validation of your orders, our teams will begin the implementation of your campaigns. All the campaigns are managed internally by our team. The sequences are written from the briefing elements transmitted by your team in each order. Oliverlist reserves the right to iterate on the form of the messages, but never on the content. We will thus remain faithful to the brief provided for the campaigns. The campaigns are launched once the set-up and training on our tools is completed. Once launched, there is a ramp-up period of about 15 days for the campaigns to reach the required speed.
11. Prospecting work
The amount of prospecting campaigns that will be set up will depend on the amount of appointments you want. This quantity can vary depending on your target and your product. It can be adjusted by the project manager in charge of your account. The domain of the email addresses that will be used for prospecting will be : @[Offer Domain (deal custom)] + “-pro” before the “.”. This domain will be purchased and managed by the Oliverlist agency once your account has been validated. Afterwards, a Google Workspace Professional account will be set up and the quantity of email addresses used will depend on the quantity of appointments you want. This quantity can vary depending on your target and your product. It can be adjusted by the project manager in charge of your account. The set-up costs as well as the configurations (email address warm-up, CNAME, SPF, DKIM, DMARC, etc.) will also be charged to the Oliverlist agency. The number of Oliverlist Professional accounts that will be set up will depend on the number of appointments you wish to have. This quantity can vary according to your target and your product. It can be adjusted by the project manager in charge of your account. The form (copywriting, follow-ups, deadlines, etc.) of the prospecting sequences will be managed directly by the Oliverlist agency team. The content and the argumentation of the messages will come from a form that we will ask you to fill in once the commercial proposal has been validated.
We will use calendar links directly synchronized with the calendar of your sales representatives for the transmission of appointments. This preparation step is to be carried out by your team during the preparatory phase. Your staff staff will be guided by the agency for this manipulation. Please note that the calendar link must not be used to make appointments outside the Oliverlist agency’s prospecting process. The Oliverlist business developers do not take part in the meetings sent to your sales representatives. We only intervene in the process of making appointments and reprocessing in case the prospect does not show up for the appointment.
13. Confirmation emails from Oliverlist platform
The prospects who have validated their participation in the appointments as well as the sales representative himself will receive a reminder 24 hours and 1 hour before the start of the appointments.
15.Participation in appointments
Appointments are made by prospects via a tool that allows them to choose an available slot directly in the calendar of the salesperson making the appointment (Calendly). As a result, the status of participation in the event is automatically validated for both participants. On your side, you are notified by e-mail that a new appointment has been booked. You will receive another reminder by email a few hours before the start of your appointment.
14. appointment management and follow-up
You can consult all the appointments made by your prospects directly on the interface of our application. The appointments are located in opportunities generated by Oliverlist in which you can find the details of the actions taken by the application and by the business developers in charge of your account.
15. reporting an appointment
If you think that an appointment presents a prospect or company outside the scope of the prospecting you have established in this contract, you can report it before the appointment only. You must inform the person(s) who made an appointment with your team by email at the time of reporting the opportunity. The subject and content of the email sent must imperatively deal with the cancellation of the appointment.
The following are valid and contractually established reasons for reporting:
- The people listed in the “Contacts” section at the bottom right of the opportunity in which the appointment is located do not have a position within the targeted and contractually established hierarchical levels.
- The people listed in the “Contacts” section at the bottom right of the opportunity in which the appointment is located do not have a position within the targeted and contractually established professional sectors.
- The industry of the company involved in the opportunity in which the appointment is located is not one of the targeted and contractually established industries.
- The size of the company involved in the opportunity is not one of the contractually established target sizes.
- The geographical area of the company in which the appointment is located is not one of the contractually established target geographical areas.
The validity of the referral is checked and validated by our teams. If the referral is validated, you will not be charged for the appointment. If the alert is not validated, the appointment will be counted as a billable appointment.
Please note that if you contact one or more prospects who have made an appointment with you or your sales team, the appointment will be counted as a billable appointment.
16. case of no-show of the prospect to the appointment
The sales representative must inform the Oliverlist agency through the opportunity in which the appointment is located by clicking on the button “The appointment did not take place”. The prospect will then be called back for a new appointment by the business developer concerned by the offer. No-show appointments are not charged.
Please note that our internal teams will try to reschedule the appointment on behalf of your company. If your prospect confirms to our teams that the appointment did take place, we remove the “Absent” status from the appointment and 10% penalties will be added to the billing for that appointment. This fee represents the cost of rescheduling. If you wish, you can claim the phone recording by email to your account manager.
17.case of no-show for the sales representative
The business developer concerned will have to manage the scheduling of a new appointment himself. The appointment will be billed on the original date.
All exchanges with our team are done via the Chat located at the bottom right of your customer interface. This is the preferred communication channel for any question related to the follow-up of your appointments.
19. billing of appointments
Appointments are billed to you at the end of each month or as soon as your account reaches a predetermined amount called the payment threshold, depending on the first deadline reached. An appointment is considered billable if it has not been reported as Absent, if it has not been reported as Off Target and 24 hours after the appointment date and time.
This is the cost amount at which billing is triggered. It starts at a fixed level of 300 €. It automatically increases by €100 if your costs reach this threshold before the end of the monthly billing cycle.
Credit card payment is the only payment method available. You can decide to remove your payment method at any time on the application.
22. Your License to the Service
You may be and hereby are granted a license to use the Service and Output Data for (and solely for) your personal and/or your internal business purposes only, subject to the prohibitions and restrictions herein, and a license to store, print or make a copy of Output Data we provide to you solely for your personal or internal business purposes. You may not resell, distribute, or create derivative works from the Service or the Output Data. You may not develop any service, product, toolset, dataset or derivative work from the Output Data or the Service, whether in aggregated or non-aggregated form, and whether in identified or de-identified form.
23. Data Sharing and Rights
When you provide Submitted Data through the Service, you understand and agree to the following, except where we and you have put in place a Premium Services Agreement (or other agreement) that expressly supersedes the below terms:
a. The Licenses You Grant To Us. When you provide us with or make available to us any Submitted Data, such as names, addresses, business titles or phone numbers of contacts or other persons, you are granting us several licenses to use that data (and you are representing to us that you have the right to make this grant):
- You grant us a perpetual and irrevocable license to access and use the Submitted Data in aggregated form, to provide, develop and improve the Service and our data assets, so long as we do not (i) in any public way refer to you or the company you work for in relation to the Submitted Data (for instance, we will never sell a list titled “List of Brand X’s Clients), or (ii) use the Submitted Data in a way that violates any contract we have entered into, or any law.
- You also provide us the perpetual and irrevocable right to sublicense, make available, copy, display, sell, publish or distribute the Submitted Data to any third party, including our customers, business partners, and service providers.
- You provide us the right to create derivative works, data models, or modeled data sets with the Submitted Data. You agree that we will own those derivative works (but not the actual Submitted Data that is distinct from those works). Examples of derivative works (without limitation) would be, for instance, if we create aggregated or modeled data sets that combine data from numerous providers in order to form a new or new type of data set. Another example would be if we used multiple sets of Submitted Data (from multiple providers) in order to derive data analytics about certain industries, buyers, or industry prospects.
- You also agree that we have the perpetual and irrevocable right to use, share, sublicense, display, copy, sell, publish and distribute the Submitted Data in aggregated, de-identified form for any purpose, in any medium.
- The foregoing license grants to Oliverlist shall be non-exclusive, perpetual and royalty-free. Oliverlist shall have the right to sublicense, assign, or transfer such licenses in its discretion.
b. The Representations You Make To Us. It is important to us that you have the right to grant us the licenses we’ve described above. If you don’t, please do not provide any Submitted Data to us. If you’re not sure whether you do, please take the time to confirm whether that is the case. We will still be here when you’re ready.
- You therefore warrant and represent that you have all necessary rights, permissions, and authority to provide the Submitted Data to us (in whole and in part), and that doing so will not put you in violation of any contracts you have signed or any laws. We provide certain examples of laws that theoretically could apply, so please continue to read.
- You likewise warrant and represent that the Submitted Data does not contain any information about individuals under the age of 18.
- You warrant and represent that providing the Submitted Data to us does not violate the GDPR ant the U.S. HIPAA law: for instance, it is not a list of hospital or doctor’s patients, or a similar dataset consisting of patients or clients of an entity covered by HIPAA (this might include, for instance, a doctor, dentist, chiropractor, acupuncturist, pharmacist or other health professional). Similarly, you agree not to provide us with Submitted Data consisting of a list of clients of an entity covered by the GLBA, which applies to many types of financial institutions including banks, hedge funds, investment advisers and insurance companies.
- You warrant and represent that you will only provide Submitted Data to us that is true and accurate, and of living persons.
c. Nature of Exchange. Our Service contains certain “co-operative” elements. This means that in exchange for providing the Submitted Data to us, and potentially for the use of other customers (at our sole discretion), you will receive access to Output Data consisting of information that we hope is equally valuable to you. While we strive to make this a fair and optimal exchange, you understand and agree that we may change these terms or the nature of the Service at any time, or alter the amount of Output Data or other access we provide – and you agree that it is in our sole discretion to do so. We likewise may terminate your account or access to the Service at any time, for any reason, including (without limitation) any violation of these Terms of Service by you or through your account. Additional rules or policies may be displayed or put in place through the Service, including any portal through which you submit or receive data; those rules or policies are incorporated by reference into these Terms of Service and you agree to adhere to them.
24. Paid and Subscription Accounts
We also may provide the Service through paid accounts, such as by offering a monthly or annual subscription, or through customized provision of services and payment terms. If you and we agree to do so, we will enter into a separate agreement with you, governed by an applicable further Order Form (“Order Form”). If you wish to enter into such an agreement, please contact us at email@example.com. In addition (unless otherwise agreed to by you and us), the following will apply to any paid Service we provide to you:
a. You agree to pay to us the applicable fees (the “Fees”) set forth in an Order Form signed by you and by us, based on the timetable set forth in the Order Form. We may increase or otherwise change the Fees at the end of any given calendar year or at the end of any Term set forth in an Order Form, in our sole discretion, by providing you with written notice (which may be by email or another conspicuous method) at least thirty (30) days prior to the end of a given year or Term.
b. You must raise any disputes regarding Fees within 60 days from receipt of the (first) applicable invoice. Any disputes not waived within that time period shall be deemed waived.
c. Invoices must be paid in full no later than thirty (30) days from the date on which they are received. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection (including reasonable attorneys fees) that we may incur. We reserve the right to terminate service immediately where bills are more than sixty (60) days in arrears.
d. You are responsible for all taxes associated with the Service other than taxes based on our net income.
e. The agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term, unless either party requests non-renewal at least thirty (30) days prior to the end of the then-current term.
f. In addition to any other remedies it may have, either party may also terminate this agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this agreement. Customer will pay in full for the Service up to and including the last day on which the Service is provided. All sections of this agree which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
h. For customers without an Order Form, you must cancel your subscription prior to 11:59 p.m. Pacific Time on the day before your next recurring billing date in order to avoid being charged. Payments are nonrefundable and there are no refunds or credits for partially used periods. Following any cancellation, however, you may choose to have access to the service through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members (“credits”). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
25. Proprietary Rights: What We Own
As between you and Oliverlist, all rights, title and interest in and to the Service, including without limitation patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated with the Service, are owned by Oliverlist. For instance, we own any design or product features inherent in the Service, such as the way that data is organized, curated, presented and delivered, and any know-how or other intellectual property inherent in the way we have create, provide, display or make available the Service. The Oliverlist names and logos are trademarks of Oliverlist, and may not be copied, imitated or used, in whole or in part, without our prior written permission.
These Terms of Service do not grant you any ownership right, title or interest in any of the above. You therefore may not use the Output Data to create any derivative work, service or product, and you may not resell or re-license the Output Data in any manner or form.
26. Restrictions on Use of Output Data
You agree not to use the Service or Output Data in certain ways. You agree not to use the Service or Output Data to:
(i) violate any applicable laws (whether federal, state, or international to the U.S.) (“Laws”),
(ii) violate the U.S. CAN-SPAM Act of 2003 or the Canadian Anti-Spam Legislation (CASL), as such statutes may be amended from time to time, or the U.S. TCPA. For information on CAN-SPAM, go here; for information on CASL, go here; and for information on the TCPA, go here;
(iii) use the Output Data to advertise or promote any goods or services (or send any other communications) that are illegal in the place offered or consumers,
(iv) use the advertise or promote adult service (such as pornography or escort services), tobacco products, illegal gambling, counterfeit or pirated goods or services, or violate any securities or commodities regulations (such as to support a “pump and dump” scheme);
(v) defraud, deceive or mislead anyone;
(vi) communicate or transmit content that is defamatory, dishonest, obscene, sexually explicit, pornographic, vulgar or offensive;
(vii) promote or engage in discrimination, racism, harassment or hate speech against any individual or group; or
(viii) threaten or promote violence.
27. Additional Restrictions on Use of the Service and Your Account
You also agree to certain restrictions on your use of the Service. You may not:
(i) allow any other person to use your account, use any other person’s account, or share your password or account credentials with any other person;
(ii) transmit information to or through the Service that is fake or fictitious;
(iii) Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
(iv) access the Service in a way that exceeds your authority, such as by logging in to a server, account, or email network when you are not authorized to do so;
(v) access the Service in an automated manner;
(vi) extract data from the Service in a way that exceeds our authorization or violates these terms or other policies or restrictions we have implemented (whether such implementation is verbal or mechanical in nature); for instance you may not or use or attempt to use any engine, software, tool, agent or other device or mechanism (including browsers, spiders, robots, avatars or intelligent agents) to navigate or search any portion of the Site, other than the search engine and search agents made available through the Service;
(viii) reverse engineer, decompile or disassemble the Service (in whole or in part).
28. Special Terms for Use of Customer Personal Data of or Output Data about European Union Residents
The General Data Protection Regulation comes into force on May 25, 2018. Oliver, as a data producer, is directly affected. All acquisition and contact processes used by Oliver are GDPR compliant. Thus, Oliverlist complies with the following legal obligations: We inform our prospects about the conditions of data processing, We respect the right to object (unsubscribe link) and we ensure that the solicitation is related to the profession of the contacted person.
30. We May Monitor the Service
We, or service providers working with us, may monitor the Service for any legitimate business purpose, including to monitor compliance with these Terms or evaluate how the Service is being accessed and used. We will be the sole and final arbiter as to whether the Service is being misused or these Terms are being violated. If we believe you have violated these Terms (or any law) we may terminate your account and access to the Service and any Output Data immediately and without notice. In such a situation we also may seek civil, criminal or injunctive relief, at its sole discretion and without obligation, to enforce this Terms of Service and the law.
31. Disclaimer of Representations and Warranties
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE ALONG WITH THE OUTPUT DATA IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (1) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) OF INFORMATIONAL CONTENT OR ACCURACY, (3) OF NON-INFRINGEMENT, (4) OF PERFORMANCE, (5) OF TITLE, (6) THAT THE SERVICE WILL OPERATE IN AN ERROR FREE, TIMELY, SECURE, OR UNINTERRUPTED MANNER, IS CURRENT AND UP TO DATE AND ACCURATELY DESCRIBES ANYTHING, OR IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (7) THAT ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, (8) THAT THE SERVICE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM, OR (9) THAT WE WILL ENFORCE THE TERMS OF SERVICE AGAINST OTHERS TO YOUR SATISFACTION. EFFORTS BY AIVONI TO MODIFY THE SERVICE SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS OR ANY OTHER PROVISION OF THESE TERMS OF SERVICE. Some jurisdictions limit or don’t allow the disclaimer of implied warranties – in those states, these warranties will be disclaimed only to fullest extent permitted by law.
32. Limitation of Liability
IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, PARENTS, SUBSIDIARIES, SUBLICENSEES, SUCCESSORS AND ASSIGNS, INDEPENDENT CONTRACTORS, AND RELATED PARTIES BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICE, OUTPUT DATA OR WITH THE DELAY OR INABILITY TO USE SAME, OR FOR ANY BREACH OF SECURITY, OR FOR ANY CONTENT, PRODUCTS, AND SERVICES OBTAINED THROUGH OR VIEWED ON THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF SAME, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, REGULATION, COMMON LAW PRECEDENT OR OTHERWISE, EVEN IF THE RESPECTIVE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF SUCH DAMAGES RESULT FROM A PARTY’S ENTITY’S NEGLIGENCE OR GROSS NEGLIGENCE. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM RELATING TO THE SERVICE (EXCLUSIVE OF PAYMENT OR INDEMNIFICATION OBLIGATIONS) EXCEED THE TOTAL OF THE AMOUNT PAID BY EITHER PARTY TO THE OTHER DURING THE PRIOR 12 MONTHS. ADDITIONAL DISCLAIMERS BY AIVONI MAY APPEAR WITHIN THE SERVICE AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON YOUR USE OF THE SERVICE OR THE MATERIAL CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY. Some jurisdictions restrict or do not allow the limitation of liability in contracts, and as a result the contents of this section may not apply to you. In cases where such laws apply, liability of the Oliverlist Entities shall be limited to the fullest extent permitted by law.
33. Arbitration, Class Action Waiver and Applicable Law
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
1. Arbitration and Class-Action Waiver
- Federal Arbitration Act. You agree that these Terms of Service affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
- Initial Dispute Resolution. Most disputes can be resolved without resort to litigation. You and we agree to use reasonable efforts to settle any dispute or claim, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration, other than lawsuits or arbitration for injunctive relief from alleged intellectual property infringement. To commence this procedure, you agree to contact our support department at firstname.lastname@example.org, or we may contact you using the last available information we have for you.
- Binding Arbitration. If we do not reach an agreed-upon solution within a period of ten (10) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then we both agree to resolve by arbitration any and all controversies, claims, or disputes arising out of, relating to, or resulting from (1) your relationship with the us, (2) these Terms of Service, (3) any other aspect of the Service.
These Terms of Service are intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of these Terms of Service are expressly excluded from Section 17.
- Governing Arbitration Rules. All claims subject to arbitration shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS rules in effect at the time the arbitration is initiated, excluding any rules or procedures that would permit class actions or other representative actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms of Service including but not limited to any claim that all or any part of these Terms of Service (such as this Section 17) is void or voidable, or whether a claim is subject to arbitration, except that the arbitrator shall have no authority to find that a claim may proceed on a class basis or as part of another representative action: only a court may address disputes regarding the validity or enforceability of the Class Action Waiver section below, Section 17(A)(v). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, unless there are conflicting rules at www.jamsadr.com, you must do the following: Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover, to us at 9 rue bartholdi, 92100 Boulogne-Billancourt.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not seek more than $75,000. The arbitrator shall have the power to award any remedies available under applicable law, and the arbitrator shall award attorneys’ fees and costs to the prevailing party, except as prohibited by law. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of France, arbitration may take place at any reasonable location within France convenient for you. For residents outside France, arbitration shall be initiated in France, and you and we agree to submit to the personal jurisdiction of any court in France, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
- Class Action Waiver. The parties agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action, seek relief on a class basis, or join or serve as a member of a class action. YOU AND AIVONI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If for any reason the proper decisionmaker determines that the waiver of class and representative actions set forth in this paragraph is void or unenforceable or that an arbitration can proceed on a class or representative basis, then Section 17(A) and Section 17(B) shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- 30-Day Right to Opt Out. You have the right to opt out and not be bound by this version of Section 17 by sending written notice of your decision to opt out to email@example.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of the first date on or after May 25, 2018 that you agree to any version of these Terms of Service that contains this version of Section 17. If you do not opt out, you will be bound to arbitrate disputes in accordance with the terms of this Section 17. You have the right to consult with counsel of your choice concerning this Section 17. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Section 17. If you opt out of Section 17, we also will not be bound by it in its disputes with you.
- Changes to this Section. Oliverlist will provide (60) days’ notice of any changes to this section. Changes will become effective on the sixtieth (60th) day, and will apply prospectively only to claims arising after the sixtieth (60th) day. If a court or arbitrator (in either case, with the authority to make such decision) decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from Section 17 and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section you agreed to.
2. Limitations to this Agreement to Arbitrate
Section 17 (Arbitration and Class Action Waiver) shall be limited as follows:
- Intellectual Property Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either Party may bring an action on an individual (not class or representative action) basis in state or federal court or in the U.S. Patent and Trademark Office to protect its patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights.
- Small Claims Court. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either Party may seek relief in a small claims court on an individual (not class or representative action) basis for disputes or claims within the scope of that court’s jurisdiction.
3. Governing Law
The Terms of Service and the relationship between you and Oliverlist shall be governed in all respects by the laws of France, without regard to its conflict of law provisions. Any claim or dispute either of us may have against the other that is not subject to arbitration must be resolved by a court located in France. We both agree to submit to the personal jurisdiction of the courts located within France, for the purpose of litigating all such claims or disputes that are not subject to arbitration.
You agree to indemnify and hold harmless Oliverlist, its directors, officers, employees, contractors and agents, and its suppliers, licensors, and service providers, from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorneys’ fees and expenses (collectively, “Claims”), arising out of or in connection with: (1) Your use of the Website or Service; (2) Your breach of these Terms of Service; or (3) Your violation of any applicable law or the rights held by any third party. Oliverlist will have the right, but not the obligation, to participate through counsel of its choice in any defense by You of any Claims as to which You are required to defend, indemnify, or hold harmless Oliverlist. You may not settle any Claims in a manner that may impose any obligation upon Oliverlist, without our prior written consent. The members of Oliverlist’s corporate family, and the agents, partners, employees, contractors and advertisers of them and of Oliverlist, are third-party beneficiaries of this paragraph. Other than them, there are no other third-party beneficiaries of the Terms of Service.
a. Complete Agreement and Understanding. These Terms of Service are the entire and exclusive understanding and agreement between us and you regarding the Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between us and you regarding such topic, provided that any express modification in an Order Form shall govern and supersede any conflicting provision in these Terms. If we (or you) don’t enforce any part of these Terms, it won’t be considered a waiver.
b. Our Relationship With You. The relationship between you and us is that of independent contractors, and nothing in these Terms of Service shall be construed to create or imply any other relationship such as a partnership or an employer/employee or agency relationship.
c. Assignment and Waiver. Oliverlist may assign these Terms at its discretion. You may not assign, sublicense or transfer these Terms (or our license grant to you herein) in whole or in part to anyone else. No waiver of any obligation or right of either party shall be effective unless in writing, executed by the party against whom it is being enforced.
36. Account Security.
We make no representations or promises regarding security. Despite our security efforts, it is possible that unauthorized individuals will obtain your information, such as through web-scraping tools (even though we do not authorize and in fact prohibit that behavior).
- Customer users are responsible for accessing the Company network, systems, or application only through encrypted connections.
- Customer users are responsible for maintaining up-to-date OS (operating system) patching and active antimalware on the end-user devices used to connect to the Company environment.
- Customers are responsible for ensuring that all terminated employees have their access revoked to the Company application within 24 hours of termination.
- Customers are required to notify Company within 72 hours of security incidents that could have implications to Company (e.g. Company application user with compromised credentials, stolen laptop of a Company user, partner network compromise including malware worm or ransomware, etc.)
- Customer users are responsible for keeping user IDs and passwords used to access Company systems confidential at all times. Customer agrees to keep Company Intellectual Property and proprietary information confidential.
- Oliverlist runs a vulnerability discovery program. If you suspect there are any vulnerability with our services, please reach out to firstname.lastname@example.org and we will look into those for you.
37. Linked Services.
The Service may contain links to – or even reside on — third-party websites and services that are not owned or controlled by us. The Service may sometimes makes available embedded links or content from such services, such as for promotions or information hosted by a third-party website. We do not assume responsibility for any such third-party websites, services or content. If you view, access or otherwise interact with any such websites, services or content, you do so at your own risk and you agree that we no liability arising from such access.
In addition to any other remedies it may have, either party may terminate this Agreement effective immediately, if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such material breach within thirty (30) days of its receipt of a written notice identifying the breach in reasonable detail (or ten (10) days in the case of non-payment). In addition, (a) for paid subscriptions, we may terminate this Agreement for convenience by providing You at least thirty (30) days’ prior written notice; and (b) for unpaid accounts only, either party may terminate this Agreement, effective immediately, by providing the other party written notice. For paid subscriptions, Customer will pay in full for the Service up to and including the last day on which the Service is provided.
Legal notices (including but not limited to termination notices) must be sent to email@example.com or 9 rue Bartholdi, 92100 Boulogne-Billancourt. We will send legal notices to You via a method of our choosing that is reasonably intended to provide such notice to You, including without limitation via the Service or to the email or other address You have provided to us.
If this Agreement terminates, You will no longer be authorized to access the Website or Services. Sections 7-9, 10, 11, 15-19 and 22-23 of the Agreement will survive termination.
If any provision of these Terms is determined by a court to be invalid, illegal or unenforceable, that determination will not affect the validity or enforceability of the remaining provisions of the Terms, and each provision shall be considered as separate, severable and distinct from each other.
40. Force Majeure.
Neither party to these terms will be deemed responsible or liable for its failure to perform or delay in performance under these Terms (or any Order Form) where such delay or failure is beyond its control, such as where caused by strikes or labor disputes, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, natural disasters including floods, earthquakes and hurricanes, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.