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THESE CONDITIONS ARE THE STANDARD TERMS AND CONDITIONS GOVERNING ANY ACTIVITY BETWEEN CLIENTS AND CARDBOARDFISH. A FURTHER TERMS OF SERVICE AGREEMENT MAY BE REQUIRED, SOLUTION DEPENDENT. CONTENTS 1. Ownership and Licensing. 2. Confidential Information. 3. Representations and Warranties. 4. Indemnification. 5. Limitation of Liability. 6. Termination. 7. Miscellaneous. 1. Ownership and Licensing. 1.1 Nothing in this Agreement is intended to effect an assignment by or to either Party of any intellectual property rights whether registered or unregistered or any applications for registration of such rights. 1.2 Nothing in this Agreement shall entitle one Party to use a logo or trademark or any intellectual property of the other Party, except as specifically set forth herein or with the prior express, written consent of CardBoardFish. 1.3 Each Party agrees that all use by it of the other party's trade marks and brands inures to the benefit of the other party (including all related goodwill) and that nothing in this Agreement confers on either party any right of ownership in the other party's trade marks or brand which remain vested in the other party. For the avoidance of doubt: (a) in the case of CardBoardFish, Client agrees that all intellectual property rights in the CardBoardFish Services shall remain with CardBoardFish and its licensors and except as expressly provided in this Agreement no rights or licenses, express or implied, are hereby granted Client in respect of the same; and in the case of Client, CardBoardFish agrees that all intellectual property rights in the Client Site and the Client Elements shall remain with the Client and its licensors and except as expressly provided in this Agreement no rights or licenses, express or implied, are hereby granted CardBoardFish in respect of the same. 2. Confidential Information. All Confidential Information disclosed by either Party to the other Party, during the term of the Agreement and for a period of three (3) years thereafter, shall not be used by the receiving Party except in connection with the activities contemplated by this Agreement, shall be maintained in confidence by the receiving Party and shall not otherwise be disclosed by the receiving Party to any other person, firm or agency, governmental or private, without the prior written consent of the disclosing Party. The obligation of confidentiality and non-disclosure shall not apply to such portion of the Confidential Information which (a) is or becomes generally available to the public other than as a result of disclosure by the receiving Party or its employees, representatives or agents; or (b) becomes available to the receiving Party on a non-confidential basis from a third party (unrelated to the receiving Party) which is entitled to disclose it; or (c) was known to the receiving Party on a non-confidential basis prior to its disclosure to the receiving Party by the disclosing Party; or (d) is independently developed or generated by the receiving Party without use of Confidential Information of the disclosing Party; (e) is required to be disclosed by law or court order; provided that the Party required to disclose Confidential Information under this clause (e) shall provide reasonable advanced notice to the other Party and shall permit such Party to oppose or limit the scope of such disclosure. "Confidential Information" means information which the disclosing Party desires to protect against unrestricted disclosure or competitive use by the receiving Party and which is clearly identified as confidential to the receiving Party. Confidential Information includes, but is not limited to, information concerning business methods and rates, business plans, client information and information concerning the technology and know-how of a Party. Confidential Information may include proprietary or confidential information of third parties that have granted licenses to the disclosing Party. 3. Representations and Warranties. 3.1 REPRESENTATIONS AND WARRANTIES OF CLIENT. Client represents and warrants that, (a) to the best of its knowledge, the Client Brand, the Client Content and the Web interface associated with the Service (collectively, the "Client Elements") do not and will not infringe or violate the intellectual property rights of any third party, (b) Client Content will not (i) violate any law or regulation; (ii) be defamatory, obscene, harmful to minors or child pornographic; (iii) contain any viruses, trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (iv) Client Elements will not deface or render unreadable network charges and all other terms and conditions associated with CardBoardFish applications or services (c) it shall make no representation or warranty on behalf of CARDBOARDFISH to any Client User concerning the CARDBOARDFISH Services (d) any text and any URL links used in or associated with CardBoardFish Webmaster applications must remain unchanged and visible at all times. CARDBOARDFISH sole remedy and Client's sole liability for breach by Client of the foregoing warranties shall be as set forth in Section 4 below. 3.2 REPRESENTATIONS AND WARRANTIES OF CARDBOARDFISH CARDBOARDFISH represents and warrants that, (a) to the best of its knowledge, the CARDBOARDFISH Brand and the CARDBOARDFISH Content associated with the Service (collectively, the "CARDBOARDFISH Elements") do not and will not infringe or violate any intellectual property rights of any third party and (b) the CARDBOARDFISH Content will not (i) violate any law or regulation; (ii) be defamatory, obscene, harmful to minors or child pornographic; or (iii) contain any viruses, trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Client's sole remedy and CARDBOARDFISH sole liability for breach by CARDBOARDFISH of the foregoing warranties shall be as set forth in Section 4 below. 3.3 DISCLAIMER. OTHER THAN THE FOREGOING, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO ITS SERVICES, BRANDS, CONTENT OR OTHERWISE, AND EACH PARTY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA OR INFORMATION PROVIDED THROUGH ITS SERVICES AND NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CARDBOARDFISH SERVICES ARE PROVIDED "AS IS" AND CARDBOARDFISH EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF ITS SERVICES. CARDBOARDFISH AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE USE OF THE CARDBOARDFISH SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DO CARDBOARDFISH OR ITS SUPPLIERS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CARDBOARDFISH SERVICES. CARDBOARDFISH RESERVES THE RIGHT TO SUSPEND OR MODIFY WEBMASTER APPLICATIONS AND/OR SERVICES AT ANY TIME. CLIENTS ARE RESPONSIBLE FOR ENSURING NETWORK CHARGES, INSTRUCTIONS AND TERMS AND CONDITIONS ASSOCIATED WITH WEBMASTER APPLICATIONS ARE EASILY VIEWABLE AND ACCESSIBLE. ALL MESSAGES DISPLAYED BY CARDBOARDFISH WEBMASTER APPLICATIONS REPRESENT THE VIEWS AND OPINIONS OF THE MESSAGE SENDER AND NOT CARDBOARDFISH OR ASSOCIATED ENTITIES. CARDBOARDFISH WILL NOT BE HELD LIABLE FOR THE CONTENT OF MESSAGES DISPLAYED BY WEBMASTER APPLICATIONS. 4. Indemnification. 4.1 INDEMNIFICATION. Each Party shall defend the other Party from and against all third party claims, suits and proceedings brought against such Party, and will pay all final judgments awarded or settlements entered into on such claims, to the extent such claim arises from a breach of its representations and warranties set forth in this Agreement with respect to Client or with respect to CARDBOARDFISH 4.2 INDEMNIFICATION PROCEDURE. As a condition of each Party's obligations under this Section, the Party to be indemnified hereunder agrees to (a) promptly notify the indemnifying Party in writing of any indemnifiable claim, and all threats, claims and proceedings related thereto, (b) give the indemnifying Party the opportunity to defend or negotiate a settlement of any such claim at its expense, except that the indemnifying Party shall not enter into any settlement that imposes any executory obligation on the indemnified Party (beyond the payment of money in settlement of the claim) and does not unconditionally release the indemnified Party without the indemnified Party's prior written approval, and (c) co-operate fully with the indemnifying Party in defending or settling such claim at the indemnifying Party's expense. Each Party reserves the right, at its own expense, to participate in the defense of any claim subject to indemnification hereunder. 5. Limitation of Liability. EXCEPT FOR ANY BREACH OF THE OBLIGATIONS SET FORTH IN SECTION 2 "CONFIDENTIAL INFORMATION" ABOVE, IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY (WHETHER ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE) FOR AGGREGATE DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE EXCEED ONE HUNDRED PERCENT (100%) OF THE TOTAL FEES ARISING HEREUNDER IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY'S NEGLIGENCE OR FRAUDULENT MISREPRESENTATION. EXCEPT FOR ANY BREACH OF THE OBLIGATIONS IN SECTION 2 "CONFIDENTIAL INFORMATION" ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE), INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, OR FOR INTERRUPTED COMMUNICATIONS, INCURRED BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6. Termination. 6.1 EARLY TERMINATION. The Agreement may be terminated by either Party in the event that the other Party has breached any material obligation under this Agreement (unless that breach arises from any of the special circumstances set out in Section 7.6 of these General Terms and Conditions), and such breach is not remedied within sixty (60) days for non-monetary breaches or within five (5) days for monetary breaches of the breaching Party's receipt of the non-breaching Party's written notice specifying the breach in reasonable detail and demanding its cure. Except as explicitly set forth elsewhere in this Agreement, the foregoing rights of termination shall be in addition to and not in lieu of any other legal or equitable remedies that the terminating Party may have. 6.2 EFFECT OF TERMINATION. 6.21 Return of Confidential Information. Within thirty (30) days following any expiration or termination of the Agreement, each Party shall return the Confidential Information of the other Party and shall delete all copies of such Confidential Information from any computer storage; provided that neither Party will be required to delete copies of Confidential Information that are included within a backup or archival copy of such Party's computer systems made in the ordinary course of business. 6.2.2 Survival. The provisions of the Sections of the Agreement entitled Ownership of Technology, Confidential Information, Representations and Warranties, Indemnification, Limitation of Liability, Effect of Termination and Miscellaneous, as well as any accrued payment obligations under Section 3 (Financial Arrangement), shall survive any termination or expiration of this Agreement. 6.3 RETURN OF PREPAYMENT. In the event of a price increase from CARDBOARDFISH, the client has the right to terminate the Agreement and any unused prepayment amount will be refunded. 7. Miscellaneous. 7.1 RELATIONSHIP OF THE PARTIES. Notwithstanding any provision hereof, for all purposes of the Agreement each Party shall be and act as an independent contractor and not as an employee, employer, partner, joint venturer or agent of the other and shall not bind nor attempt to bind the other to any contract, liability or obligation of any kind. 7.2 NON-SOLICITATION. Both Parties agree that, during the term of this Agreement and for two (2) years after its termination, they will not directly or indirectly employ or offer employment to any person who was employed by the other Party unless such person shall have ceased to be employed by the respective Party for at least six (6) months. 7.3 ASSIGNMENT. Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that either Party may assign this Agreement upon notice to the other Party in connection with a merger, reorganisation, consolidation, re-incorporation, or sale of all or substantially all assets or all the capital stock of the Party. This Agreement shall be binding upon and inure to the benefit of any successors and assigns. 7.4 AMENDMENT OR MODIFICATIONS. Any amendments or modification of any provision hereof must be in writing, dated, and signed by both Parties. 7.5 NOTICES. Any communication, consent or notice required or permitted by the Agreement to be given the other Party shall be in writing and shall be deemed given upon (a) 72 hours from the date of posting in the case of pre-paid recorded delivery or registered post (b) upon delivery by a nationally recognised express delivery service (or by an internationally recognised express delivery service in the case of an address for service outside of the United Kingdom. For the avoidance of doubt notice given under this Agreement shall not be validly served if sent by e-mail. 7.6 FORCE MAJEURE. Neither Party will be liable for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including acts or omissions of government or military authority, acts of God, shortages of materials, telecommunications failures (including any systemic Internet failures and any interruptions in services of Internet or mobile service providers or operators), transportation delays, earthquakes, fires, floods, labour disturbances, riots or wars. 7.7 WAIVER. No failure by either Party to insist upon the strict performance of any covenant, duty, agreement or condition hereof or to exercise any right or remedy consequent upon a breach hereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition. 7.8 COUNTERPARTS. This Agreement may be executed in counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument. 7.9 GOVERNING LAW AND JURISDICTION Each Party irrevocably agrees to submit to the law and non-exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with the Agreement or the legal relationships established by the Agreement. 7.10 SEVERABILITY. If any provision hereof should be held invalid, illegal or unenforceable in any respect in any jurisdiction, then, to the fullest extent permitted by law, (a) all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties as nearly as may be possible and (b) such invalidity illegality or un-enforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction. 7.11 EXPORT CONTROL. Client shall comply with all relevant import and export laws, rules and regulations affecting the CARDBOARDFISH Services or any portion of the CARDBOARDFISH Services including, without limitation those applied by the United Kingdom. Regardless of any disclosure made by Client to CARDBOARDFISH of the destination of the CARDBOARDFISH Services, Client will not export or re-export, directly or indirectly, the CARDBOARDFISH Services without first obtaining all written consents or authorisations which may be required by any such laws, rules or regulations.
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