GENERAL TERMS AND CONDITIONS

Annex I

General Terms and Conditions (the “Terms”)

1. DEFINITIONS

1.1. “Aggregate Data” means data that may include Client Data but does not identify Client. 


1.2. “Client Data” means any electronic data and content that is provided by Client or third-party providers of data to Rupert in the course of Client 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. “Order Form” means Rupert Order Form #1, and any subsequent Rupert order form that is entered into by both parties for the Service to be provided hereunder.  Unless the parties agree otherwise in writing, any subsequent order form shall be in substantially the same form as Rupert Order Form #1. The Order Form also constitutes a purchase order.


1.5. “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. 


1.6. “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 these Terms: (i) include the Documentation and the products, services, features, content and information made available or provided by Rupert in connection with Client’s use of the Service, and (ii) do not include Client Data.


1.7. “Subscription Term” means: (i) the Initial Subscription Term and each Renewal Subscription Term, 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.


1.8. “User(s)” means an individual, or other named resource listed in the Service database, that is authorized by Client to use the Service on behalf of Client in accordance with these Terms.  A User may be an employee or contractor of Client.  The applicable User categories for the Service are set forth in the Documentation.

2. RIGHT TO USE

 

Subject to these Terms, including without limitation payment of the applicable subscription fees, Rupert grants to Client, and Client accepts, a limited, nonexclusive, non-transferable and non-sublicensable right to access and use the Service, solely: (i) in accordance with these Terms and the Documentation, (ii) for Client’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.

3. USERS

Client shall only permit its Users to access and use the Service on Client’s behalf and in accordance with these Terms.  Client shall remain responsible and liable to Rupert for any act or omission of a User that would constitute a breach of these Terms if such act or omission were by Client.

4. ACCEPTABLE USE

Except to the extent expressly permitted herein or authorized by Rupert in writing, Client 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 Client’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 Client Data to or via the Service unless Client 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 these Terms.

5. CLIENT ACCOUNT

Client is solely responsible for: (i) the confidentiality and use of names and passwords under Client’s account, and (ii) the activity that occurs under Client’s account.  Rupert will deem any use of the Service under Client’s account names and passwords to be for Client’s sole benefit and use.  Client must immediately notify Rupert in writing if Client becomes aware that account names or passwords are lost, stolen, or being used in an unauthorized manner.

6. MINIMUM REQUIREMENTS

Client 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.

7. CLIENT DATA

7.1. Client Data Ownership. Client (and its customers) retains exclusive ownership of the Client Data. 

7.2. License. Client grants Rupert a non-exclusive license to use, process, store, display, reproduce, and aggregate Client Data.  Client is solely responsible for the content of Client Data and represents and warrants that it owns or has obtained the rights to all of the intellectual property rights subsisting in the Client Data, and Client has the right to provide Rupert the license granted herein to use such Client Data in accordance with these Terms.  Client agrees that it will not include in Client 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. Client agrees that Rupert may use Aggregate Data for any purpose and disclose Aggregate Data to third parties.

7.3No Liability. Client acknowledges and agrees that Rupert shall have no liability whatsoever, regardless of the legal theory or basis of liability, for Client Data or any Service results or outcomes based on, arising out of, or relating to Client Data.

 
7.4
. Processing Personal Data. Client acknowledges and agrees that Rupert shall process personal data Included in Client Data in compliance with applicable data protection laws and in accordance with the Privacy and Information Security Addendum. 

8. SECURITY

Rupert maintains appropriate technical, administrative and organizational measures and controls to keep the Client 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 Client Data. 

9. SERVICE OWNERSHIP

 All right, title and interest in and to the Service and Rupert’s Confidential Information, 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 these Terms.  These Terms do 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. CLIENT FEEDBACK

If Client provides any suggestions, ideas, enhancement requests or feedback to Rupert regarding the Service, Client 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.

12. MONITORING

Rupert may, at its expense, monitor Client’s compliance with the terms and conditions of these Terms.  If it is discovered that Client has underpaid applicable subscription fees to Rupert, Rupert may immediately invoice Client 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. Client 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 Client and any Client-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 these Terms.

14.2. Disclaimer of Warranties. THE SERVICE, AND ANY CONDUCT RENDERED IN ACCORDANCE WITH THESE TERMS, 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.  Client 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 Client’s hardware or software or Client’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. INDEMNIFICATION

15.1. By Rupert. Rupert shall defend and indemnify Client from any costs and damages awarded against Client by a court of competent jurisdiction, or paid in settlement, in connection with a third-party claim, suit or proceeding that Client’s use of the Service in accordance with these Terms 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 Client 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 Client) 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, Client 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 Client’s sole remedy for any infringement of any intellectual property rights with respect to the Service.

 

15.2. By Client. Client 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) Client’s use of the Service in violation of these Terms; or (ii) Rupert’s use of Client Data, as permitted under these Terms, infringes or violates the third party’s intellectual property or other rights.
By Client. Client 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) Client’s use of the Service in violation of these Terms; or (ii) Rupert’s use of Client Data, as permitted under these Terms, infringes or violates the third party’s intellectual property or other rights.
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.

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

16.1Limitation. The aggregate liability of each party (and its affiliates and 3rd party licensors) arising under or in connection with these Terms (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 Client for the specific Service giving rise to such liability during the twelve (12) month period preceding the date on which the claim arose.

16.2Exclusion. 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 these Terms (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.

16.3Exceptions to limitations. The limits 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) Client’s payment obligations under these Terms, (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 Client 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”). Client agrees to comply with the Export Control Laws as they relate to access to and use of the Service and such other components by Client. Client shall not access or use the Service if Client 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 Client shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. Client represents, warrants and covenants that (i) Client 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) Client is not a national of, located in, or a company registered in, any Prohibited Jurisdiction,  (iii) no Client Data created or submitted by Client is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws, and  (v) Client shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Client and Users are located. You further agree that Client will not use the Service to disclose, transfer, download, export or re-export, directly or indirectly, any Client 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 Client may be subject. Client acknowledges that the Service may not be available in all jurisdictions and that Client is solely responsible for complying with the Export Control Laws.  If Client 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 Client with only those rights as provided under the terms and conditions of these Terms.

18. CONFIDENTIALITY

Each party acknowledges that during the term of these Terms 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 these Terms; (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 these Terms, 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 these Terms, 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.  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.

19. TERM

 

These Terms, and the right to access and use the Service, commences and shall become effective on the Effective Date and shall remain in effect until each Subscription Term has expired or been terminated.  If Client continues to use the Service past any renewal date, then Client shall be deemed to have renewed these Terms at the rates applicable for the new Subscription Term.

 

20. TERMINATION

 

Notwithstanding any other provision herein to the contrary, either party may terminate these Terms with immediate effect if the other party materially breaches these Terms and such breach remains uncured (to the extent that the breach can be cured) thirty (30) days after having received written notice thereof.  

21. CONSEQUENCES OF TERMINATION

Upon the actual termination of these Terms: (i) all subscriptions shall be deemed to automatically terminate, and Client shall immediately stop to access and use the Service; (ii) Client shall promptly return to Rupert all Confidential Information provided by Rupert in Client’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 these Terms make available to Client a full export of Client Data in a standard format (e.g., SQL), and (b) following that thirty (30) day period, delete all Client Data that is in Rupert’s possession or control (a portion of the Client Data may be retained but solely to the extent required for billing and audit purposes).  Rupert does not accept any liability for any Client Data that is deleted in accordance with this section.  
This section and sections 4 (Acceptable Use), 7.1 (Client 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 these Terms.

SECTION 18. SURVIVAL

Sections 1 (Your Responsibilities), 4 (Intellectual Property Rights), 5 (Billing, Plan Modification and Payments), 6 (Suspension and Termination), 7 (Confidentiality), 8 (Data Privacy and Security), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 14 (Indemnification), 18 (Survival), 19 (Notices; Consent to electronic communication) and 21 (Governing Law and Dispute Resolution) shall survive any termination of Our agreement with respect to use of the Service(s) by You. Termination of such agreement shall not limit Your or Our liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

SECTION 19. NOTICES; CONSENT TO ELECTRONIC COMMUNICATIONS

 

19.1 All notices to be provided by Us to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You on any while subscribing to the Service(s); or (ii) electronic mail to the e-mail address provided for Your Account.


19.2 Our address for a notice to Us in writing by Courier or US Mail is: Rupert Inc., c/o Crowell & Moring LLP, 3 Embarcadero Ctr., 26th Floor, San Francisco, CA 94111 with a copy to legal@hirupert.com by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.

SECTION 20. ANTI-CORRUPTION

20.1 You agree that neither You, nor any of Your respective officers, employees, agents, representatives, contractors, intermediaries or any other person or entity acting on Your behalf have taken, been offered, or will take any action, directly or indirectly, in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-corruption or anti-bribery laws, in connection with these Terms and the Service provided hereunder, including without limitation any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us at legal@hirupert.com

 

SECTION 21. GOVERNING LAW AND DISPUTE RESOLUTION

21.1. These Terms shall be governed by the laws of the State of New York without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of New York, for the purpose of resolving any dispute relating to the Terms or Your access to or use of the Service(s).


21.2. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by arbitration in New York, New York before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. ANY ARBITRATION UNDER THESE TERMS SHALL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ACTION AND CLASS ARBITRATIONS ARE NOT PERMITTED. YOU UNDERSTAND THAT BY AGREEING TO THESE TERMS, YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

22. CHANGES

 

Rupert may make changes to the Service from time-to-time.  Rupert will provide reasonable written notice to Client before removing any material feature or functionality of the Service, or discontinuing the Service.  If Rupert discontinues the Service, or any material part thereof, Client 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 Client 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

Client 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 Client mask any data that it chooses to store in a development environment.
 

24. PROMOTIONAL ACTIVITIES

Rupert may use Client’s name and logo on its website and in its promotional materials to state that Client is a customer of Rupert and Service user, but will not imply that the parties are affiliated.  Client agrees to serve as a reference customer of Rupert and shall cooperate with Rupert’s reasonable marketing and referencing requests.  Upon the execution of the Order Form, Rupert may issue a press release, provided that the content of the press release is first approved in writing by Client (such approval not to be unreasonably withheld).

25. ANONYMOUS INFORMATION

Rupert is permitted to use Anonymous 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.  "Anonymous Information" means information which does not enable identification of an individual user, such as aggregated information, about use of the Service.
 

26. NOTICES

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.

 

27. ASSIGNMENT

Neither party may assign these Terms, 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 these Terms 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.  These Terms 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. GENERAL

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 these Terms.  If any provision of these Terms 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. These Terms 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.

 

28.6Dispute Resolution. If any dispute arises out of these Terms, the parties agree to first cooperate and negotiate in good faith in an effort to amicably resolve the dispute.  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 these Terms 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. Formation.  The following documents are incorporated herein by this reference:
Privacy and Information Security Addendum (Annex A).

 

28.8. Entire Agreement and Modifications. These Terms and the Order Form, as amended from time to time: (i) constitute 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 these Terms; and (ii) may only be modified by a writing that is mutually signed by both parties.  The preprinted provisions of any Client purchase order shall not apply and shall be deemed to be for administrative purposes only.