TERMS OF SERVICE

This Terms of Service Agreement (“Agreement”) and our Privacy Policy govern your access to and use of Rupert services and the Rupert website, so it is important to read these terms carefully. By using Rupert, you are expressly agreeing to these Terms. If you are using Rupert on behalf of an organization such as your employer, you are agreeing to these Terms on behalf of that organization, and represent and warrant that you have the authority to agree to these terms on the organization’s behalf. In that case, “you” and “your” will refer to that organization.


These Terms may change over time and you agree to be bound by those new Terms. If so, we’ll let you know. We will also make sure to post the new version of the terms on Our Website, so it is important to check Our Website regularly. In the event of a conflict between these terms of service and Our Privacy Notice, these terms of service shall prevail. You, as an individual, must be 18 years or older to access or use the Websites and the Service(s).

SECTION 1. YOUR RIGHTS AND RESPONSIBILITIES


1.1 These Terms are applicable during Your free trial and during Your subscription to the Service(s).

 

1.2 Using Our Service(s): Subject to Your compliance with the Terms and solely during the Subscription Term, You have the limited, non-exclusive, and revocable right to access and use the Service(s) for Your internal business purposes. You shall be responsible for use of the Service(s) through Your Account by any third parties. You may subscribe to one or more of the Service(s). They may be subject to separate and distinct Service Plans.

1.3 Your Account: Subject to any limitation on the number of individual Users available under the Service Plan to which You subscribed, access and use of the Service(s) is restricted to the specified number of individual Users permitted under Your subscription to the Service(s). Each User shall be identified using unique login information such as usernames and passwords (“User Login”) and such User Login shall be used only by one individual. Without prejudice to Our obligations under Sections 7 and 8 of these Terms, You are solely responsible for the confidentiality of Service Data and User Login at Your end. You should, therefore, not share Your User Login with any third parties. In any event, unless You notify Us of any unauthorized use or suspicious activity in Your Account, You are responsible for all activities that occur under Your Account. Rupert will not be liable for any damage or loss that may result from Your failure to protect Your login information, including Your password. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Service(s) to store and transmit Service Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Service(s) or the information generated thereby is accurate or sufficient for Your purposes.

1.4 Your use of the Service(s): You shall: (a) have sole responsibility for the accuracy, quality, and legality of all Service Data; and (b) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Rupert promptly of any unauthorized access or use. You shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service(s) available to any third party, other than Users and End-Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (ii) use the Service(s) to Process data on behalf of any third party other than Your Users and End-Users; (iii) modify, adapt, or hack the Service(s) or otherwise attempt to gain or gain unauthorized access to the Service(s) or related systems or networks; (iv) falsely imply any sponsorship or association with Us; (v) use the Service in violation of Laws; (vi) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (vii) knowingly send or store Malicious Code in connection with the Service; (viii) knowingly interfere with or disrupt performance or integrity of the Service or the data contained therein; or (ix) attempt to gain access to the Service or its related systems or networks; (x) use the Service(s) in any way that infringes or interferes upon any person’s intellectual property rights. Customer is responsible for its Affiliates and Authorized Parties compliance with the Agreement and any breach by its Affiliates or Authorized Parties shall be deemed a breach by Customer.

1.5 You shall be responsible for any loss of data or attempted or actual access or use of the Service(s) through Your Account in violation of these Terms.

1.6 If We inform You that a specified activity or purpose is prohibited with respect to the Service(s), You will ensure that You immediately cease use of the Service(s) for such prohibited activity or purpose.

SECTION 2. ACCESS TO THE SERVICE(S)

2.1 You may not be able to access or use the Service(s) (a) during planned downtime for upgrades and maintenance to the Service(s) (of which We will use commercially reasonable efforts to notify You in advance through Our Service(s)) (“Planned Downtime”), or (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks.

2.2 We will use commercially reasonable efforts to schedule Planned Downtime for weekends and other off-peak hours.

SECTION 3. CHANGES TO THE SERVICE(S) AND WEBSITES

3.1 Our Service(s): We may update the Service(s) from time to time and You may receive notifications of such upgrades, enhancements or updates (“Updates”). Any new or modified features added to or augmenting or otherwise modifying the Service(s) or other updates, modifications or enhancements to the Service(s) are also subject to these Terms and We reserve the right to deploy Updates at any time.

3.2 Websites: We may also change content on Our Websites at any time. However, please note that any of the content on Our Websites may be out of date at any given time, and We are under no obligation to update it. For clarity, this sub-section refers to Our Websites excluding the Service(s). We may discontinue or change any part of Our Websites, that does not affect the Service(s), without notifying You. Our Websites may contain links to websites, content and resources provided by third parties (“Third Party Links”). These Third Party Links are governed by their own terms and privacy policies and You agree that We have no control over these Third Party Links and are not responsible for Your access or use of these Third Party Links.

SECTION 4. INTELLECTUAL PROPERTY RIGHTS

4.1 IP Ownership: Except for the rights granted to You under Section 1, all rights, title and interest in and to all Our patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights in or related to the Service(s), including the Websites, and any part of it (collectively, “Intellectual Property Rights”) shall belong to and remain exclusively with Us. We are the owner or the licensee of all Intellectual Property Rights in Our Websites, and the content or material published on it. Those works are protected by copyright laws and treaties around the world. You must not use any part of the content on Our Websites for commercial purposes without obtaining a license to do so from Us or Our licensors. Further, We claim no intellectual property rights over the content You upload or provide to the Service(s).

4.2 Grant of License to Us: We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service(s) or Websites or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You.

4.3 Grant of License to You: Our product and service names, and logos used or displayed on the Service(s) or Websites are Our registered or unregistered trademarks (collectively, “Marks”), and You may only use such Marks to identify You as a user of the Service(s) You have subscribed to.

4.4 Reservation of Rights: All rights not expressly provided to You herein are reserved.

4.5 Logo: You hereby grant Us a revocable, worldwide, non-exclusive, royalty-free license to use, reproduce, publish, and display Your name, logo, and marks on Our Websites, marketing materials, and/or earnings announcement materials in accordance with any standard trademark usage guidelines that You provide.

SECTION 5. BILLING, PLAN MODIFICATIONS AND PAYMENTS

5.1 Subscription Charges: Unless otherwise specified in the Supplementary terms, except during Your free trial, all charges associated with Your Account (“Subscription Charges”) are due in full and payable in advance, in accordance with Section 5.2, when You subscribe to the Service(s). Unless specified otherwise in a Form, the Subscription Charges are based on the Service Plans You choose and are payable in full until You terminate Your Account in accordance with Section 6. You will receive a receipt upon each receipt of payment by Us. You may also obtain a payment receipt from within the Service(s).

5.2 Payment methods: You may pay the Subscription Charges through Your credit card, or other accepted payment method as specified in a Form. For credit card payments, Your payment is due immediately upon Your receipt of Our invoice. You hereby authorize Us or Our authorized agents, as applicable, to bill Your credit card upon Your subscription to the Service(s) (and any renewal thereof). For payments through other accepted methods, Your payment is due within thirty (30) days of Our invoice date unless otherwise stated in a Form.

5.3 Renewal: Your subscription to the Service(s) will renew automatically for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service(s) for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences. You acknowledge and agree that, unless You terminate Your Account in accordance Section 8, Your credit card will be charged automatically for the applicable Subscription Charges.

5.4 We may use a third party service provider to manage credit card and other payment processing; provided, that such service provider is not permitted to store, retain or use Your payment account information except to process Your credit card and other payment information for Us. You must notify Us of any change in Your credit card or other payment account information, either by updating Your Account or by e-mailing Us at support@hirupert.com.

5.5 Refunds: Unless otherwise specified in these Terms or a Form or a Service Plan, all Subscription Charges are nonrefundable. No refunds shall be issued for partial use or non-use of the Service(s) by You provided however You shall be eligible for a pro-rated refund of the Subscription Charges for the remainder of the Subscription Term if You terminate Your Account as a result of a material breach of these Terms by Us.

5.6. Late Payments/Non-payment of Subscription Charges: We will notify You if We do not receive payment towards the Subscription Charges within the due date for Your Account. For payments made through credit cards, We must receive payments due within a maximum of five (5) days from the date of Our notice and for payments through other accepted methods, We must receive payments within a maximum of fifteen (15) days from the date of Our notice. If We do not receive payment within the foregoing time period, in addition to Our right to other remedies available under law, We may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Your access to and use of the Service(s) until We receive Your payment towards the Subscription Charges as specified herein and/or; (iii) terminate Your Account in accordance with Section 6.2.

5.8 Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying the Taxes that would be levied against You by government authorities. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.

5.9 User Benefits: We may, at Our sole discretion, offer You certain benefits such as discounts on Subscription Charges, extension in Subscription Term for no extra payments from You, with regard to the Service(s). These benefits are specific to Your Account and the Service(s) identified while offering these benefits. They are not transferrable. The benefits may have an expiry date. If they do not have an expiry date, they will expire upon completion of twelve (12) months from their date of offer.

SECTION 6. SUSPENSION AND TERMINATION

6.1 We shall not be liable to You or any other third party for suspension or termination of Your Account, or access to and use the Service(s), if such suspension or termination is in accordance with these Terms.

6.2 Free trial Customers: If You are on a free trial for any of Our Service(s), Your Account may be suspended or terminated in the following manner:

6.2.1 We may suspend Your access to and use of Your Account or the Service(s) if You are in violation of the Terms. We will notify You of Your activities that violate these Terms and, at Our sole discretion, provide You with a period of fifteen (15) days (“Cure Period”) to cure or cease such activities. If You do not cure or cease such activities within said Cure Period or if We believe that Your breach of these Terms cannot be cured, Your Account shall be terminated and all associated Service Data shall be deleted immediately and permanently.

6.2.2 You may terminate Your Account at any time on or before the expiry of Your free trial. In such cases, We shall retain any associated Service Data for a period of 12 months beyond the date of termination, at which point all associated Service Data shall be deleted immediately and permanently.

6.2.3 Where you do not terminate Your Account or renew Your Account on or before the expiry of Your free trial, We may suspend Your Account. We shall retain any associated Service Data for a period of 12 months beyond which Your Account shall be terminated the date of termination, and at which point all associated Service Data shall be deleted immediately and permanently.

6.3 Customers on a Service Plan: If You are on a Service Plan for any of Our Service(s), Your Account may be suspended or terminated in the following manner:

6.3.1 In addition to suspension for late payment or non-payment of Subscription Charges, We may suspend Your access to and use of Your Account or the Service(s) if You are in violation of the Terms. We will notify You of Your activities that violate these Terms and, at Our sole discretion, provide You with a period of fifteen (15) days (“Cure Period”) to cure or cease such activities. If You do not cure or cease such activities within said Cure Period or if We believe that Your breach of these Terms cannot be cured, Your Account shall be terminated. Any associated Service Data shall be retained for a period of 14 days from the date of termination of Your Account beyond which it shall be deleted during the normal course of operation.

6.3.2 You may elect to terminate Your Account at any time from within Our Service(s), if You pay for Your Account through credit card. If payment for Your Account is made through other accepted payment methods as specified in the Form, You may request to terminate Your Account by writing to support@hirupert.com. Any associated Service Data shall be retained for a period of 14 days from the date of termination of Your Account beyond which it shall be deleted during the normal course of operation.

6.3.3 We may suspend Your Account upon expiry or non-renewal of Your Subscription Term. We shall retain any associated Service Data for a period of 6 months beyond which Your Account shall be terminated and all associated Service Data shall be deleted immediately and permanently.

6.4 Effect of Terminating Your Account:

6.4.1 Data Export: We strongly recommend that You export all Service Data before You terminate Your Account. In any event, following the termination of Your Account either by You or Us, unless otherwise specified elsewhere herein or in any other agreement, if applicable, Service Data will be retained or deleted in accordance with Sections 6.2 or 6.3 as applicable to You. Where the Service Data is retained as described herein, You may contact Us within such Data Retention Period to export Your Service Data. Service Data cannot be recovered once it is deleted.

 

6.4.2 Charges: If Your Account is terminated in accordance with Sections 6.2 or 6.3 of these Terms, in addition to other amounts You may owe Us, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term, unless waived by Us in writing. This amount will not be payable by You, or You may be eligible for a pro-rated refund of the Subscription Charges, as the case may be, where You terminate Your subscription to the Service(s) or terminate Your Account as a result of a material breach of these Terms by Us, provided that You provide notice of such breach to Us and afford Us not less than thirty (30) days to reasonably cure such breach.

SECTION 7. CONFIDENTIALITY

7.1 If You choose, or You are provided with, a user identification code, password or any other piece of information as part of Our security procedures, You must treat such information as confidential. You must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by You or allocated by Us, at any time, if in Our reasonable opinion, You have failed to comply with any of the provisions of these Terms.

7.2 Confidentiality obligations: We take confidentiality seriously. Each of us will protect the other’s Confidential Information, including such Service Data, from unauthorized use, access or disclosure in the same manner as each of us protects our own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use the other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this sub-section shall supersede any non-disclosure agreement by and between You and Us entered prior to these Terms that would purport to address the confidentiality of Service Data and such agreement shall have no further force or effect with respect to Service Data.

SECTION 8. OWNERSHIP, DATA PRIVACY AND SECURITY

8.1 You shall retain ownership rights to all Service Data Processed under the terms of this Agreement.

8.2 Security of Service Data: Rupert does not host, store, or otherwise possess Service Data beyond necessary to perform our respective obligations under these Terms. We use appropriate technical and organizational measures to protect the Service Data that we Process. The measures we use are designed to provide a level of security appropriate to the risk of Processing your Service Data.

8.3 No Sale of Service Data. Rupert will never sell, rent, or lease Your Service Data to any third party. We will not share Your Service Data with third parties, except as permitted by this Agreement and in order to provide, secure and support the Services.

8.4 Processing Data. You understand that We shall Process Service Data in accordance with Applicable Data Protection Laws and in accordance with Our Privacy Notice. You acknowledge and agree that Rupert may also access or disclose information about You, Your Account, Users or End-Users, including Service Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect Rupert’s or Our customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service(s); (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.

8.5 Metadata and Cookies. We may use a third-party partner to collect metadata associated with Your use of the Services. Whenever You, Your Agents or End-Users interact with or use Our Services, We automatically receive and record information on Our server logs from the browser or device, which may include metadata, “cookie” information, and the type of browser and/or device being used to access the Services. You understand that this information may contain information that would identify Your Agents or End-Users, subject to the laws of Your jurisdiction or any other term contained herein. When We collect this information, We use it to provide the Services or for other purposes as described elsewhere in these Terms.  When We collect this information, We only use this data to provide the Services or in aggregate form, and not in a manner that would identify Your Agents or End-Users personally.

8.6 Personal Data. To the extent Rupert collects Personal Data of Your Agents, Rupert processes such Personal Data in accordance with Our Privacy Policy. Our Privacy Policy explains how We collect and process this Personal Data where necessary to provide the Services and in accordance with Our legitimate interests in communicating with Your users in connection with their use of the Services. Where We rely on Our legitimate interest as described above, Your Users or End-Users may have certain rights relating to their Personal Data. These rights and how they can be exercised are explained in Our Privacy Policy and You are responsible for bringing this to their attention.​

8.7 If either party becomes aware of a Security Breach, such party must promptly notify the other party, unless legally prohibited from doing so, within forty-eight hours or any shorter period required by Law provided, however, You are not required to notify Rupert unless You reasonably determine there is a threat to the Service. Additionally, each party will reasonably assist the other party in mitigating any potential damage. As soon as reasonably practicable after any Security Breach, Rupert shall conduct a root cause analysis and, upon request, will share the results of its analysis and its remediation plan with Customer. Unless prohibited by Law, each party shall provide the other party with reasonable notice of and the opportunity to review and comment on the content of all public notices, filings, or press releases about a Security Breach that identify the other party by name prior to any such publication.

SECTION 9. DATA MIGRATION

As part of Your use of the Services, You may request Us to import data into Your Account ("Data Migration"). You hereby understand and acknowledge that We may access and process Your data in connection with providing You support during such Data Migration or other use of the Services.

SECTION 10. COMMUNICATIONS FROM US

Apart from the communications specified in Our Privacy Notice, We may contact You directly via e-mail to notify You if

a.    You are in violation of these Terms;

b.    A specific activity or purpose is prohibited with respect to the Service(s), so that You immediately cease use of the Service(s) for such prohibited activity or purpose; or

c.    You maintain an exceptionally high number of Users, an unusually high monthly ticket ratio per Users, an unusually high level of open tickets or other excessive stress on the Service(s).

SECTION 11. DISCLAIMER OF WARRANTIES

THE WEBSITES AND THE SERVICE(S), 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(S) OR WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE AND YOU FURTHER ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ACCESS TO THE SERVICE(S), 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 SOFTWARE.

THE CONTENT ON OUR WEBSITES IS PROVIDED FOR GENERAL INFORMATION ONLY. IT IS NOT INTENDED TO AMOUNT TO ADVICE ON WHICH YOU SHOULD RELY. YOU MUST OBTAIN PROFESSIONAL OR SPECIALIST ADVICE BEFORE TAKING, OR REFRAINING FROM, ANY ACTION ON THE BASIS OF THE CONTENT ON OUR WEBSITES. NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE(S) OR WEBSITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

SECTION 12. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL NOT EXCEED  AN AMOUNT EQUAL TO THE LOWER OF (A) TWELVE MONTHS OF THE SUBSCRIPTION CHARGES FOR THE SERVICE(S) TO WHICH THE CLAIM RELATES; OR (B) THE SUBSCRIPTION CHARGES PAID BY YOU, FOR THE SERVICE(S) TO WHICH THE CLAIM RELATES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. 

IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.

SECTION 13. INDEMNIFICATION

13.1 If use of the Service(s) by You has become, or in Our opinion is likely to become, the subject of any IP Claim (defined below), We may at Our own option and expense (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify the Service(s) to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Us, terminate Your subscription to the Service(s) and repay You, on a pro-rated basis, any Subscription Charges You have previously paid Us for the corresponding unused portion.

13.2 Indemnification by Us: Rupert shall defend You, at Rupert’s expense, from claims, demands, suits, or proceedings made or brought against You by a third party (“Claims”) alleging that the use of the Service as contemplated hereunder infringes such third party’s Intellectual Property Rights and shall indemnify and hold You harmless against any loss, damage or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, “Losses”). Rupert shall have no liability for Claims or Losses to the extent arising from: (v) modification of the Service by anyone other than Us; (w) use of the Service in a manner inconsistent with the Documentation or in violation of this Agreement; or (x) use of the Service in combination with any other product or service not provided by Us. If You are enjoined from using the Service or We reasonably believe it will be enjoined, We shall have the right, at its sole option, to obtain for You the right to continue use of the Service or to replace or modify the Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to Us, then the Agreement may be terminated at either party’s option and Rupert’s sole liability, in addition to the indemnification obligations herein, shall be to refund any prepaid Subscription Fees for the Service that was to be provided after the effective date of termination.

13.3 Sections 13.1 and 13.2 state Our sole, exclusive and entire liability to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service(s) by You.

13.4 Indemnification by You: You will indemnify and hold Rupert harmless against any claim brought by a third party against Us, and their respective employees, officers, directors and agents arising from or related to use of the Service(s) by You in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that We promptly notify You of the threat or notice of such a claim. You will also indemnify and hold Rupert harmless against any claim arising from any unauthorized disclosure of or access to Service Data is caused by Your use of the Service.

SECTION 14. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS

14.1 You shall not, directly or indirectly, assign all or any Your rights under these Terms or delegate performance of Your duties under these Terms without Our prior written consent. We may, without Your consent, assign Our agreement with You under these Terms in connection with any merger or change of Our control or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

14.2 These Terms, together with any Form(s) and Supplemental Terms, constitute the entire agreement, and supersede any and all prior agreements between You and Us with regard to the subject matter hereof. These Terms and any Form(s) shall prevail over the terms or conditions in any purchase order or other order documentation You or any Entity You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. In the event of a conflict between any Form and these Terms, these Terms shall prevail.

14.3 We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. Please read these Terms of use carefully before You start to use Our Service(s) or Websites, as these will apply to Your use of the Service(s) and Our Websites. Please check these Terms from time to time to take notice of any changes We made, as they will be binding on You. We will notify You not less than ten (10) days prior to the effective date of any amendments to these terms of service and Your continued use of the Service(s) following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. With respect to amendments only to the Supplemental Terms, We will notify You as aforementioned only if the Supplemental Terms are applicable to You. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.

SECTION 15. SEVERABILITY; NO WAIVER

 

If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Our non-exercise of any right under or provision of these Terms does not constitute a waiver of that right or provision of the Terms.

 

SECTION 16. EXPORT COMPLIANCE AND USE RESTRICTIONS; FEDERAL GOVERNMENT END USE PROVISIONS

 

The Service(s) and other Software or components of the Service(s) which We may provide or make available to You or Users 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”). You agree to comply with the Export Control Laws as they relate to access to and use of the Service(s), Software and such other components by You and Users. You shall not access or use the Service(s) if You are located in any jurisdiction in which the provision of the Service(s), Software 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 You shall not provide access to the Service(s) to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (i) You are 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) You are not a national of, located in, or a company registered in, any Prohibited Jurisdiction, (iii) You shall not permit Users to access or use the Service(s) in violation of the Export Control Laws (iv) no Service Data created or submitted by You is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws, and  (v) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You and Your Users are located. You further agree that You will not use the Service(s) to disclose, transfer, download, export or re-export, directly or indirectly, any Service 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 You may be subject. You acknowledge that the Service(s) and other Software may not be available in all jurisdictions and that You are solely responsible for complying with the Export Control Laws

 

If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service(s) 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(s) is licensed to You with only those rights as provided under the terms and conditions of these Terms.

SECTION 17. RELATIONSHIP OF THE PARTIES

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

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 Services 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.

SECTION 22. DEFINITIONS

 

When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:

 

Account: means any accounts or instances created by or on behalf of You for access and use of any of the Service(s).

Affiliate: means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

 

Agent: means an individual authorized to use the Service(s) through Your Account for such Service(s) as an agent and/or administrator as identified through a User Login.

Agreement: means the Terms of Service Agreement together with any and all Amended Terms, Supplemental Terms, Order Forms, and other documents such as a SOW, CCPA Addendum and DPA (each, where applicable) along with the Rupert’s Privacy Policy.

Confidential Information: means all information disclosed by You to Us or by Us to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.

End-User: means any person or entity other than Subscriber or Agents with whom Subscriber, its Agents, or its End-Users interact while using a Service.

Intellectual Property Rights: means any and all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.

Malicious Software: means any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.

 

Personal Data: means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.

Privacy Notice: means Our privacy notice at www.hirupert.com/privacy_policy as updated from time to time.

Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

Service(s): means the products and services that are ordered by You online through a link or via access through Our Website referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all Deployed Associated Services that are provided under this Agreement.

Service(s) Data: means all electronic data, text, messages or other materials, including Personal Data of Users and End-Users, submitted or made available to the Service(s) by You through Your Account in connection with Your use of the Service(s), including, without limitation, Personal Data. Service(s) Data may include but is not limited to data warehouse access credentials, business intelligence tools (including any credentials, metadata, or other data associated with the tools), SQL queries and queries results (including any logs and metadata associated with the queries), metadata associated with any third-party tools integrated for purposes of offering Service(s) (including third-party messaging tools).

Security Breach: means an unauthorized access or improper disclosure that has been verified to have affected Your Service Data.

Software: means software provided by Us (either by download or access through the internet) that allows You to use any functionality in connection with the Service(s) and may include a Mobile Application.

Subscription Term: means the period during which You have agreed to subscribe to the Service(s) with respect to any individual User.

Taxes: means taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.

Us or We or Rupert: means Rupert, Inc., a Delaware corporation, or any of its successors or assignees. In these Terms, Us may also be referred to as “We”, and “Our”.

User or You or Customer: means those who are designated users within the Service(s), including an Account administrator, Agents and other designated users.

Website(s): means the websites for various Service(s) and other websites that Rupert operates.

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