Master Subscription Agreement
Master Subscription Agreement
We have replaced our General Terms and Conditions with this Master Subscription Agreement. If You are a new Customer, this Master Subscription Agreement is effective as of May 5, 2023. If You are an existing Customer, we are providing you with prior notice of these changes which will be effective as of June 5, 2023, unless you entered into a separately executed agreement with Rupert. For the previous version of our General Terms and Conditions, please click here.
This Master Subscription Agreement is made between Rupert, Inc., a Delaware corporation, (“Rupert”) and the party that subscribes for Rupert’s Service (as defined below) (“Customer”). This “Agreement” consists of this Master Subscription Agreement and each Order Form (as defined below) which is executed as a standalone order form (each an “Order”). By using the Service or by entering into an Order which references this Agreement, Customer agrees to the terms and conditions of this Agreement. The individual accepting this Agreement represents that they have the authority to bind the Customer to this Agreement.
1.1. “Aggregate Data” means data that may include Customer Data but does not identify Customer.
1.2. “Customer Data” means any electronic data and content that is provided by Customer or third-party providers of data to Rupert in the course of Customer using the Service.
1.3. “Documentation” means standard user documentation for the Service that is made generally available by Rupert to its Service users and which is displayed by Rupert online on its customer zone, as updated from time-to-time.
1.4. “Effective Date” is the date of execution of the Agreement.
1.5. “Order Form” means the Rupert ordering document, and any subsequent ordering document that is entered into by both parties for the Service to be provided hereunder. The Order Form also constitutes a purchase order.
1.6. “Privacy and Information Security Addendum” means the Rupert Privacy and Information Security Addendum attached hereto as Annex A, and as updated from time to time.
1.7. “Service” means those products that are provided by Rupert on a software-as-a-service (SaaS) basis and that are identified in the Order Form. All references to the Service in this Agreement: (i) include the Documentation and the products, services, features, content and information made available or provided by Rupert in connection with Customer’s use of the Service, and (ii) do not include Customer Data.
1.8.“Subscription” means the subscription for the Service as set forth in an Order Form.
1.9. “Subscription Fee” means the amounts due for a corresponding Service as set forth in an Order Form.
1.10. “Subscription Term” means: (i) the initial Subscription Term and each Renewal Subscription Term (as defined herein), and (ii) any subscription periods for other or additional subscriptions, each as defined and/or set forth in an Order Form or valid purchase order that is accepted by Rupert.
1.11 “User(s)” means an individual, or other named resource listed in the Service database, that is authorized by Customer to use the Service on behalf of Customer in accordance with this Agreement. A User may be an employee or contractor of Customer. The applicable User categories for the Service are set forth in the Documentation.
2. RIGHT TO USE
Subject to this Agreement, including without limitation payment of the applicable Subscription Fees, Rupert grants to Customer, and Customer accepts, a limited, nonexclusive, non-transferable and non-sublicensable right to access and use the Service, solely: (i) in accordance with this Agreement and the Documentation, (ii) for Customer’s internal business purposes, (iii) during the applicable Subscription Term, (iv) within the Territory set forth in the Order Form, and (v) the usage levels specified in the Documentation.
Customer shall only permit its Users to access and use the Service on Customer’s behalf and in accordance with this Agreement. Customer shall remain responsible and liable to Rupert for any act or omission of a User that would constitute a breach of this Agreement if such act or omission were by Customer.
4. ACCEPTABLE USE
Except to the extent expressly permitted herein or authorized by Rupert in writing, Customer shall not and shall not permit others to: (i) sell, rent, lease, license or distribute the Service to a third party; (ii) use the Service in a timeshare arrangement or a service bureau offering; (iii) copy or modify the Service, and/or create derivative works based upon the Service; (iv) use the Service to develop a competing service or product; (v) violate or abuse password protections governing Service access; (vi) circumvent, disable or otherwise interfere with security-related features of the Service or features that enforce limitations on access to and use of the Service; (vii) allow any third party to access and use the Service (except for Customer’s Users); (viii) interfere with the Service or take any action that imposes or may Impose, at Rupert's sole discretion, a disproportionately large load on the Rupert infrastructure; (ix) remove, deface, obscure or alter Rupert’s, or a third party’s, copyright notices, trademarks or other proprietary rights affixed to or provided as part of the Service, or use or display logos of the Service differing from those of Rupert; (x) upload or transmit any Customer Data to or via the Service unless Customer has obtained all of the necessary rights and consents, including from data subjects, to do so; (xi) use the communications systems provided by the Service to send unauthorized commercial communications or messages that are unlawful, inappropriate or in violation of a third party’s intellectual property rights; and/or (xii) otherwise use the Service in an unlawful manner or in breach of this Agreement.
5. CUSTOMER ACCOUNT
Customer is solely responsible for: (i) the confidentiality and use of names and passwords under Customer’s account, and (ii) the activity that occurs under Customer’s account. Rupert will deem any use of the Service under Customer’s account names and passwords to be for Customer’s sole benefit and use. Customer must immediately notify Rupert in writing if Customer becomes aware that account names or passwords are lost, stolen, or being used in an unauthorized manner.
6. MINIMUM REQUIREMENTS
Customer is responsible, at its cost, to meet the minimum system requirements for use of the Service that are provided or made available by Rupert, including to obtain access to the Internet using software and hardware that meets Rupert’s security and performance requirements. Certain features of the Service allow Customer to connect or link to third party platforms, tools and/or data sources (“External Data Sources.”) In the event Customer connects or links to an External Data Source, Customer must allow Rupert full access to the user activity log of the External Data Source including credentials to access the activity log directly from the External Data Source. Rupert reserves the right to pause features of the Service if Customer does not provide access to the External Data Source. Data update frequency from the External Data Source must be at least twenty four hours or the highest supported update frequency available, and data must be retained for at least a month or up to the maximum time period that Customer’s External Data Source allows.
7. CUSTOMER DATA
7.1. Customer Data Ownership. Customer (and its customers) retains exclusive ownership of the Customer Data.
7.2. License. Customer grants Rupert a non-exclusive license to use, process, store, display, reproduce, and aggregate Customer Data. Customer is solely responsible for the content of Customer Data and represents and warrants that it owns or has obtained the rights to all of the intellectual property rights subsisting in the Customer Data, and Customer has the right to provide Rupert the license granted herein to use such Customer Data in accordance with this Agreement. Customer agrees that it will not include in Customer Data any data, including personal information, which is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties. Customer agrees that Rupert may use Aggregate Data for its internal business purposes.
7.3. No Liability. Customer acknowledges and agrees that Rupert shall have no liability whatsoever, regardless of the legal theory or basis of liability, for Customer Data or any Service results or outcomes based on, arising out of, or relating to Customer Data.
7.4. Processing Personal Data. Customer acknowledges and agrees that Rupert shall process personal data Included in Customer Data in compliance with applicable data protection laws and in accordance with the Privacy and Information Security Addendum.
Rupert maintains appropriate technical, administrative and organizational measures and controls to keep the Customer Data secure and protect it against unauthorized access or disclosure. Rupert will comply at all times with the Privacy and Information Security Addendum in its collection, use and storage of any Customer Data.
9. SERVICE OWNERSHIP
All right, title and interest in and to the Service, and any modifications, enhancements and improvements thereto, including all intellectual property and proprietary rights therein, are and at all times shall remain the sole and exclusive property of Rupert and its licensors, and shall be subject to this Agreement. This Agreement does not convey any rights of ownership. No rights are granted hereunder other than as expressly set forth herein. “Rupert” and the Rupert logo are trademarks of Rupert or its affiliates.
10. CUSTOMER FEEDBACK
If Customer provides any suggestions, ideas, enhancement requests or feedback to Rupert regarding the Service, Customer grants Rupert (and its affiliates) a worldwide, perpetual, irrevocable and royalty-free license to use and incorporate the same in any Rupert product or service.
11. SUBSCRPITION FEES
11.1. Pricing. The Subscription Fees for the Service are set forth in the Order Form (or valid purchase order that is accepted by Rupert.)
11.2. On-demand Consumption. Rupert will alert Customer when it is nearing its consumption limit of the Customer’s monthly purchased capacity, and when Customer has hit their limit. In the event Customer exceeds the purchased capacity, Customer will be billed the amounts for each excess unit in accordance with the on-demand pricing on the applicable Order Form. Customer is solely liable and will pay for all Subscription Fees applied to on-demand consumption.
11.3. Add-Ons. “Add-Ons” are additional offerings that a Customer can add to their Subscription any time during the Subscription Term by executing an Order Form for the Add-On. Add-Ons are (i) billed immediately upon Order and on a prorated basis from date of purchase to the end of that month’s billing cycle; (ii) then billed on recurring basis every month thereafter until the end of the Subscription Term at the amounts set forth in the Order Form. Customer will continue receiving the Add-On services for the duration of the Subscription Term. Customer may elect to cancel an Add-On any time during the Subscription Term by emailing Rupert at firstname.lastname@example.org or the Rupert point of contact in the Subscription Order Form. A request to cancel the Add-On must be made at least three days before the end of the billing cycle for cancellation to take effect for the next billing cycle. For any request made less than three days prior, cancellation will not take effect until the end of the next billing cycle. In the event of late cancellations, Customer will continue receiving Add-On services for the next billing cycle and is responsible for payment of all Add-On Subscription Fees during such cycle.
11.4. Payment Terms. Unless otherwise set forth in the Order Form (or valid purchase order that is accepted by Rupert) Subscription Fees (a) will be invoiced in advance, or in the case of on-demand consumption, invoiced in arrears monthly, and (b) are due and payable within thirty (30) days from invoice date. Unless otherwise set forth in the Order Form, Subscription Fee payments registered to pay via credit card or any digital payment method supported by Rupert are due on the date of the invoice and payments registered to pay via wire transfer or Automated Clearing House (ACH) are due within 30 days of the invoice date. All Subscription Terms are non-cancelable once commenced or renewed, and Subscription Fees paid are non-refundable.
11.5. Payment Methods. If Customer is paying Subscription Fees using a credit card or any digital payment method supported by Rupert, Customer authorizes Rupert to charge Customer’s account using that payment method. Customer must keep all information in its billing account current to ensure that all Subscription Fees are charged to the appropriate payment method and are timely paid. If Customer notifies Rupert to stop using a previously designated payment method and fails to designate an alternative, Rupert may, at its sole discretion, issue an invoice that is immediately due and payable and/or immediately suspend use and access to the Services. Any notice from Customer changing its billing account will not affect charges Rupert submits to Customer’s billing account before Rupert can reasonably act on Customer’s request. Notice (including email) from Rupert’s third-party credit card processor (“Payment Processor”) declining Customer’s credit card or otherwise relating to Customer’s account will be deemed valid notice from Rupert. You are bound by the applicable Payment Processor’s terms and conditions for the processing of payments, as the same may be modified by such Payment Processor from time to time (collectively, the “Payment Processer Terms”). Information provided to any Payment Processor is governed by the applicable Payment Processor Terms. Rupert is not responsible for the performance of any Payment Processor.
11.6. Late Payments. Past due amounts not subject to a Good Faith Dispute, as set forth in Section 28.6, are subject to a finance charge of 1.5% per month, or the highest rate allowed by law, whichever is less, from the date due until paid. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Rupert in collecting past due amounts. Subject to Rupert providing Customer with a written reminder about an overdue payment and at least thirty (30) days to pay the overdue amount, Rupert may suspend access to and use of the Service until any overdue amount is paid in full.
11.7. Taxes. The Subscription Fees set forth in the Order Form (or valid purchase order) are the net amounts due to Rupert for the Service, and are exclusive of applicable taxes (including, without limitation, any stamp and customs taxes and any value-added, goods and services, sales, or like taxes), withholdings or duties (“Taxes”). Customer shall be responsible for the payment of all Taxes with respect to its subscription to and use of the Service, other than taxes based on Rupert's net income. If a taxing authority determines that Rupert did not collect all applicable taxes, Customer shall remain liable to Rupert for such additional taxes, but not any interest or penalty assessed as the result of Rupert’s failure to timely collect such additional taxes.
Rupert may, at its expense, monitor Customer’s compliance with the terms and conditions of this Agreement. If it is discovered that Customer has underpaid applicable Subscription Fees to Rupert, Rupert may immediately invoice Customer for such underpaid fees.
13. SERVICE UPDATES
The Subscription Fees include updates from time to time in and to the products included in the Services and subscribed to in the Order Form. Customer acknowledges and agrees that certain new features and improvements introduced in connection with such updates are not included in the Subscription Fees and may be subject to separate fees agreed to in writing by and between Rupert and Customer and any Customer-specific modifications to the products included in the Services are priced separately.
14. WARRANTIES AND DISCLAIMERS
14.1. Authority. Each party warrants that it has full corporate power and has obtained the required authority and consents to enter into and perform its obligations under this Agreement.
14.2. Disclaimer of Warranties. THE SERVICE, AND ANY CONDUCT RENDERED IN ACCORDANCE WITH THIS AGREEMENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. WE EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, WARRANTIES OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE AND YOU FURTHER ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ACCESS TO THE SERVICE, WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS CODE.
FROM TIME TO TIME, RUPERT MAY OFFER NEW “BETA” FEATURES OR TOOLS IN THE SERVICE WITH WHICH USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT ANY TIME AT OUR SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES AND TOOLS.
14.3. Emergency Communications. Any text messaging, or other communication tools, included within the Service must not be relied upon as a communication channel in a life-threatening or emergency event.
14.4. High Risk Activities. The Service is not designed or intended for use in high-risk activities or hazardous environments that require fail-safe performance where failure of the Service could lead to death, personal injury, or environmental or property damage. Rupert specifically disclaims any express or implicit warranty of the Service’s suitability for these types of activities.
14.5. Third Party Data Sources. Rupert is not responsible for the accuracy of, or liable for the inaccuracy of, any third-party sources of data utilized in connection with the Service.
14.6. No Other Warranties. Rupert disclaims any warranty that the Service will operate uninterrupted, error-free or completely secure. Customer acknowledges that there are certain risks inherent in Internet connectivity that could result in the loss of privacy, Confidential Information and data. Rupert will not be responsible for: (i) any technical problems of the Internet (such as slow Internet or outages), and/or (ii) any issue attributable to Customer’s hardware or software or Customer’s Internet or data service provider. Except as expressly stated herein: (a) the Service is provided “as-is” and without warranty of any kind whether express, implied, statutory or otherwise, and (b) Rupert disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, and non-infringement, to the maximum extent permitted by applicable law.
15.1. By Rupert. Rupert shall defend and indemnify Customer from any costs and damages awarded against Customer by a court of competent jurisdiction, or paid in settlement, in connection with a third-party claim, suit or proceeding that Customer’s use of the Service in accordance with this Agreement infringes the third party’s intellectual property rights. Rupert’s obligations under this section do not apply: (i) to any third-party open source software that may be included in the Service, and (ii) if the alleged infringement is based on the Customer Data or third party data or any use of the Service except as authorized by Rupert in writing or as provided herein. Without derogating from the foregoing defense and indemnification obligation, if Rupert believes that the Service, or any part thereof, may infringe a third party’s intellectual property rights, then Rupert may in its sole discretion: (a) obtain (at no additional cost to Customer) the right to continue to use the Service, or (b) replace or modify the allegedly infringing part of the Service so that it becomes non-infringing while giving substantially equivalent performance. If Rupert determines that the foregoing remedies are not available on reasonable economic terms, Rupert may require that use of the Service (or part thereof) cease and, in such an event, Customer shall receive a prorated refund of applicable Subscription Fees paid for the unused portion of the remainder of the Subscription Term for the Service (or part thereof) that is terminated. This section states Rupert’s entire liability and Customer’s sole remedy for any infringement of any intellectual property rights with respect to the Service.
15.2. By Customer. Customer shall defend and indemnify Rupert from any damages awarded against Rupert by a court of competent jurisdiction, or paid in settlement, in connection with a third-party claim, suit or proceeding that (i) Customer’s use of the Service in violation of this Agreement; or (ii) Rupert’s use of Customer Data, as permitted under this Agreement, infringes or violates the third party’s intellectual property or other rights.
15.3. General. The defense and indemnification obligations of a party under this section are subject to: (i) the indemnifying party being given prompt written notice of the claim; (ii) the indemnifying party being given immediate and complete control over the defense (and settlement) of the claim; and (iii) the indemnified party providing cooperation and assistance, at the indemnifying party’s expense, in the defense or settlement of the claim and not taking any action that prejudices the indemnifying party's defense of, or response to, the claim.
16. LIMITATION OF LIABILITY
16.1. Limitation. The aggregate liability of each party (and its affiliates and 3rd party licensors) arising under or in connection with this Agreement (whether an action is under statute, in contract or in tort and regardless of the theory of liability), is limited to direct losses and damages, and shall not under any circumstances exceed the total amounts received by Rupert from Customer for the specific Service giving rise to such liability during the twelve (12) month period preceding the date on which the claim arose.
16.2. Exclusion of Damages. In no event will either party (and its affiliates and 3rd party licensors) be liable for any indirect, consequential, special, incidental, punitive or exemplary damages, or for any damages for lost revenues and profits, business interruption, or loss of goodwill or use of the Service, whether arising under or in connection with this Agreement (whether an action is under statute, in contract or in tort and regardless of the theory of liability) even if the party knew that such damages were possible.
16.3. Exceptions to limitations. The limitations and exclusions of liability in this section 16 (Limitation of Liability) apply to the fullest extent permitted by applicable law, but do not apply to: (i) Customer’s payment obligations under this Agreement, (ii) any liability for death or personal injury caused by a party’s negligence, (iii) fraud or fraudulent misrepresentation, or (iv) a breach of section 4 (Acceptable Use) and/or section 9 (Service Ownership).
17. EXPORT COMPLIANCE AND USE RESTRICTIONS; FEDERAL GOVERNMENT END USE PROVISIONS
The Service or components of the Services which Rupert may provide or make available to Customer may be subject to U.S. (or other territories) export control and economic sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). Customer agrees to comply with the Export Control Laws as they relate to access to and use of the Service and such other components by Customer. Customer shall not access or use the Service if Customer is located in any jurisdiction in which the provision of the Service or other components is prohibited under U.S. or other applicable laws or regulations, including without limitation a country or territory that is subject to comprehensive U.S. trade sanctions (including Crimea, Cuba, Iran, North Korea, and Syria) (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that (i) Customer is not named on, or owned or controlled by any party named on, any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Customer is not a national of, located in, or a company registered in, any Prohibited Jurisdiction, (iii) no Customer Data created or submitted by Customer is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws, and (v) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and Users are located. You further agree that Customer will not use the Service to disclose, transfer, download, export or re-export, directly or indirectly, any Customer Data to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which Customer may be subject. Customer acknowledges that the Service may not be available in all jurisdictions and that Customer is solely responsible for complying with the Export Control Laws. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.
Each party acknowledges that during the term of this Agreement it (“Receiving Party”) may be entrusted with certain confidential information of the other party (“Disclosing Party”) that should reasonably have been understood by Receiving Party due to legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to Disclosing Party (“Confidential Information”). Receiving Party shall: (i) not use any Confidential Information for any purpose except to exercise its rights and obligations under this Agreement; (ii) protect all Confidential Information using the same degree of care which it uses with respect to its own confidential information, but in no event less than reasonable care; and (iii) not, without Disclosing Party’s prior written consent, disclose the Confidential Information to any third party except to its employees, contractors and agents ("Permitted Recipients") who have a need to know in order to enable Receiving Party to perform its rights and obligations under this Agreement, provided that each Permitted Recipient is first bound by a written obligation of confidentiality that is at least as demanding as the confidentiality and non-disclosure obligations imposed on Receiving Party under this Agreement, and further provided that Receiving Party shall be liable to Disclosing Party for any breach of confidentiality or non-disclosure by a Permitted Recipient. Receiving Party shall promptly notify Disclosing Party of any actual or threatened unauthorized disclosure or use of Confidential Information. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of Receiving Party, Receiving Party shall (to the extent permitted by applicable law) promptly notify Disclosing Party of the order or request and permit Disclosing Party (at its own expense) to seek an appropriate protective order. Each party hereby retains its entire right, title and interest, including all intellectual property rights, in and to all of its Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an assignment, grant, option, license or other transfer of any such right, title or interest whatsoever to the Receiving Party or any of its Permitted Recipients. Confidential Information does not include information that: (a) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (b) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (c) has come into the possession of Receiving Party rightfully from a third party without any breach of obligation of confidentiality owed to Disclosing Party; and/or (d) was developed by Receiving Party independently of and without reference to Confidential Information.
This Agreement, and the right to access and use the Service, commences and shall become effective on the Effective Date and shall remain in effect for an initial period which is set specified in the Order Form (the “Initial Subscription Term”). Thereafter, unless otherwise agreed to by the parties in an applicable Order Form, the Order will automatically renew for additional periods equal to the Initial Subscription Term (a “Renewal Subscription Term,”) until either party provides written notice of its intention not to renew the Order at least fifteen (15) days prior to the expiration of the then-current term (i.e., the Initial Subscription Term or Renewal Subscription Term, as applicable), in which event the Order will terminate at the end of the then current term.
Notwithstanding any other provision herein to the contrary, either party may terminate this Agreement with immediate effect (i) if the other party materially breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) thirty (30) days after having received written notice thereof; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days .
21. CONSEQUENCES OF TERMINATION
21.1. Upon the actual termination of this Agreement: (i) all subscriptions shall be deemed to automatically terminate, and Customer shall immediately stop to access and use the Service; (ii) Customer shall promptly return to Rupert all Confidential Information provided by Rupert in Customer’s possession or control; and (iii) Rupert will (a) upon a written request that is received within thirty (30) days of the actual termination of this Agreement make available to Customer a full export of Customer Data in a standard format (e.g., SQL), and (b) following that thirty (30) day period, delete all Customer Data that is in Rupert’s possession or control (a portion of the Customer Data may be retained but solely to the extent required for billing and audit purposes). Rupert does not accept any liability for any Customer Data that is deleted in accordance with this section.
21.2. This section and sections 4 (Acceptable Use), 7.1 (Customer Data Ownership), 9 (Service Ownership), 11 (Subscription Fees, to the extent due amounts remain unpaid), 16 (Indemnification), 17 (Limitation of Liability), 18 (Confidentiality), 25 (Anonymous Information), 26 (Notices), 27 (Assignment) and 28 (General) hereof shall survive any termination of this Agreement.
Rupert may make changes to the Service from time-to-time. Rupert will provide reasonable written notice to Customer before removing any material feature or functionality of the Service, or discontinuing the Service. If Rupert discontinues the Service, or any material part thereof, Customer may (within thirty (30) days’ of its receipt of Rupert’s notice thereof) elect to terminate its subscription to that Service and, in such an event, Rupert will (as its sole liability) provide Customer with a pro rata refund of the pre-paid subscription fee for the unused remainder of the Subscription Term for the discontinued Service or part thereof.
23. SANDBOXES AND DEVELOPMENT ENVIRONMENTS
Customer acknowledges that sandboxes and development environments, if any, are for non-production testing purposes only. Notwithstanding any other provision herein to the contrary, the Privacy and Information Security Addendum does not apply to development environments. Rupert recommends that Customer mask any data that it chooses to store in a development environment.
24. CUSTOMER REFERENCE
Customer acknowledges and accepts that Rupert has the right to use Customer’s name and logo to identify Customer as a customer of Rupert or User of the Service, on Rupert’s website, marketing materials or otherwise by public announcements. Customer may revoke such right, at any time, by contacting email@example.com.
25. ANONYMIZED INFORMATION
Rupert is permitted to use aggregated and Anonymized Information (defined below) or disclose it to third party service providers, to provide, improve and develop the Service and other offerings, including to analyze trends, gather demographic information and identify products and services that may be desirable to customers. "Anonymized Information" means information from which identifying information has been removed so that the data or information cannot be attributed to any individual user (or its customers) about use of the Service.
Any notice that is required to be given hereunder shall be: (i) in writing and delivered by courier service or mailed by pre-paid registered mail addressed to the parties’ respective addresses, or e-mailed, and (ii) deemed to have been received by the addressee at the time and date when actually delivered or in any event within five (5) days after sending in the manner provided herein. The addresses provided herein may be changed at any time on prior written notice.
Neither party may assign this Agreement, or its rights and obligations hereunder, without the prior written consent of the other party, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign or otherwise transfer this Agreement and its rights and obligations hereunder to (i) its subsidiary or parent; or (ii) or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. The assigning party shall give prompt written notice of the assignment to the other party. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in violation of this section shall be void.
28.1. Independent Contractors. The parties are acting solely as independent contractors, and neither party is an agent or partner of the other.
28.2. Waiver. No failure or delay in exercising any right hereunder by either party shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver.
28.3. Interpretation and Severability. The headings used herein are for convenience only and shall in no case be considered in construing this Agreement. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be reformed, construed and enforced to the maximum extent permissible, and the remaining provisions shall remain in full force and effect.
28.4. Force Majeure. Except for any payment obligations hereunder, neither party shall be liable for any failure to perform due to causes beyond its reasonable control provided that such party takes all reasonable steps to minimize the extent and duration of any such failure in performance.
28.5. Governing Law. This Agreement will be governed by, interpreted, and construed in accordance with the substantive laws of the State of New York, without regard to its conflict of laws principles.
28.6. Dispute Resolution. If any dispute arises out of this Agreement, the parties agree to first cooperate and negotiate in good faith in an effort to amicably resolve the dispute. If any dispute arises in regard to Subscription Fees, Customer must assert any good faith dispute in writing within 10 days of receipt of the invoice giving rise to the dispute (“Good Faith Dispute.”) Except in the event of a Good Faith Dispute, if Customer fails to make payment when due, without limiting Rupert's other rights and remedies, Rupert may exercise its rights to Late Payments under Section 11.4. Without limiting the right of either party to seek injunctive relief in any court of competent jurisdiction to protect its intellectual property rights, any dispute or claim arising out of or relating to this Agreement will be exclusively resolved in the state and federal courts located in New York County, New York, and each party expressly consents to the exclusive jurisdiction therein.
28.7. Privacy. The following document(s) are incorporated herein by reference:
Privacy and Information Security Addendum (Annex A)
28.8. Entire Agreement and Modifications. This Agreement, as amended from time to time constitutes the entire understanding between the parties, and supersede all prior discussions, representations, understandings or agreements, whether oral or in writing, between the parties with respect to the subject-matter of this Agreement. We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify you not less than thirty (30) days prior to the effective date of any such amendment and your continued use of the Service following the effective date of any such amendment may be relied upon by Rupert as your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.