TurnTo System Terms and Conditions
Effective April 20, 2013
The TurnTo Networks, Inc. web service (the “System” or “TurnTo System”) is the sole property of and operated by TurnTo Networks, Inc. (“TurnTo”). By using the TurnTo System you acknowledge that you have read the Terms and Conditions, understand them, and agree to be bound by them. Your right to use the TurnTo System is dependent upon your compliance with all obligations under the Terms and Conditions and the Service Order submitted by you and signed by you and TurnTo (“Order”, and with the Terms and Conditions referred to herein collectively as “Agreement”), including without limitation all payments due to TurnTo being current.
1. Use of the TurnTo System
1.1 Provision of Services. Subject to the terms and conditions of this Agreement, TurnTo will provide you with services, particularly software as a service and IT services (collectively, “Services”) through the TurnTo Networks, Inc. web service (“System” or “TurnTo System”) as set forth in this Agreement.
1.2 License. Subject to the terms and conditions of this Agreement, TurnTo grants to you a limited, non-exclusive, non-transferable, non-sublicenseable license to access and use the TurnTo System set forth in the Order.
1.3 Limitations on Use. You shall be responsible for compliance with all applicable law, rules and regulations, if any, related to the performance of your obligations under this Agreement. You shall not, and shall not allow any third party to:
(a) display or use data from the TurnTo System in any manner that implies a partnership entity or affiliation with, sponsorship, or endorsement by TurnTo, or that can be reasonably interpreted to suggest editorial content has been authorized by, or represents the views or opinions of TurnTo or TurnTo personnel;
(b) except as expressly allowed in the TurnTo technical documentation, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the TurnTo System;
(c) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes the TurnTo System or any access thereto;
(d) remove, deface, obscure or alter TurnTo’s copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the TurnTo System, including “Powered by TurnTo” labels which link to the TurnTo Networks website; you acknowledge that the fees agreed to under this Agreement are conditioned upon your display of TurnTo’s proprietary notices;
(e) engage in any action or practice that reflects poorly on TurnTo or otherwise disparages or devalues TurnTo’s reputation or good will;
(f) use the TurnTo System in any manner that either directly or indirectly violates any federal, state or local laws applicable to you, any court, regulatory or other order or judgment against you in the United States or any other countries.
In addition to any other rights and remedies it may have at law or in equity, TurnTo has the right to automatically suspend or terminate your use of the TurnTo System for any violation of this Section 1.3.
1.4 Identity of Content Providers. In the TurnTo administrative console, you will designate all people who interact with the TurnTo system who work for you (as employees, contractors or agents) as such so that any content submissions of theirs will be identified by the “Staff” or other appropriate label in the user interface, and if you repurpose any content generated through use of the TurnTo System, you will also use a staff or other appropriate label to identify submissions by these people.
1.5 Experts. You may only assign employees and people not affiliated with any supplier or vendor to you as Experts through the Experts area of the administrative console. You many not assign employees of or people affiliated with your suppliers and vendors as Experts.
1.6 Modification of Services. This Agreement covers any new modifications, enhancements and improvements to the TurnTo System. Unless otherwise explicitly stated, the TurnTo System and the services provided thereby may be modified or terminated in whole or in party at any time by TurnTo for any reason, without notice
1.6 Modification of Terms. TurnTo reserves the right to make changes to the Terms and Conditions at any time with or without notice. The current version of the Terms and Conditions may be viewed any time at www.turntonetworks.com/terms-and-conditions. You are obligated to review the Terms and Conditions periodically. If a modification is unacceptable to you, you may cancel the services provided by TurnTo and terminate the Agreement by email notification to TurnTo at email@example.com within 30 days of the modification and removing the TurnTo System from your site. Your continued use of the TurnTo System is evidence of your continued acceptance of the Terms and Conditions.
2. Ownership Rights.
2.1 TurnTo System. You acknowledge that TurnTo owns all right, title and interest, including without limitation all Intellectual Property Rights in and to the TurnTo System and all modifications, improvements, upgrades, derivative works and feedback related thereto, and that you do not acquire any right, title or interest in or to the TurnTo Systems except as expressly set forth herein. “Intellectual Property Rights” means any and all rights existing from time to time, including without limitation any copyrights, patents, trademarks, trade secrets or moral rights, now or hereafter in force and effect worldwide. You may not create or attempt to create a substitute or similar service or product through the use of the TurnTo System or proprietary information related thereto.
2.2 Data Ownership and Use. Transaction data, product and catalog data, and customer data that are provided to the TurnTo System by you, content created by users interacting with the TurnTo System through user interfaces installed on properties belonging to you, and content created by members of your team interacting with any user interface to the System, are owned exclusively by you (collectively, “Your Data”). You grant to TurnTo a limited, non-exclusive, royalty-free, revocable, world-wise license to use and disclose Your Data during the term of this Agreement (a) to provide, improve and monitor the Services, and (b) for statistical, analytical and other aggregate anonymized uses, including without limitation, product research, development and improvement. Unless Your Data is already in the public domain as, for example, in the case of question-and-answer content that has passed moderation, TurnTo’s use of Your Data will never personally identify either you or the end user, except where TurnTo has received your permission to do so. As between you and TurnTo, you acknowledge and agree that any derivatives or improvements to TurnTo’s services or products resulting from TurnTo’s use of Your Data are the sole and exclusive property of TurnTo. TurnTo will remove any or all of Your Data from the active database of the TurnTo System promptly upon receipt of written instructions to do so; provided however that copies of Your Data retained in TurnTo’s archival files will be erased or destroyed according to TurnTo’s normal data processing and backup procedures.
Except as expressly allowed under clause 2.2(b) above, TurnTo collects, receives, and uses Your Data solely as an agent performing tasks on your behalf and under your instructions. TurnTo does not use these data for any purpose except as expressly requested and authorized by you in this Agreement.
2.3 No Other Ownership Rights. Other than ownership of Your Data as expressly stated in Section 2.2 above, you have no ownership rights in any other data in the TurnTo System.
2.4 Branding. “Brand Names or Logos” is defined as the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party. TurnTo hereby grants to you a nontransferable, nonsublicenseable, nonexclusive license during the Term (defined below) to display TurnTo’s Brand Names or Logos for the purpose of promoting or advertising that you use the TurnTo Service. You hereby grant to TurnTo a nontransferable, nonexclusive license during the Term to use your Brand Names and Logos on TurnTo’s customer list. Nothing in this Agreement will grant or will be deemed to grant to one party any right, title or interest in or to the other party’s Brand Names or Logos. All use by either party of the other’s Brand Names or Logos (including any goodwill associated therewith) will inure to the benefit of the granting party. At no time during or after the term of this Agreement will either party challenge or assist others to challenge the Brand Names or Logos of the grantor (except to the extent such restriction is prohibited by law) or the registration thereof by grantor, nor will either party attempt to register any Brand Names or Logos (including domain names) that are confusingly similar in any way (including but not limited to, sound, appearance and spelling) to those of the grantor. Neither party shall use the Brand Names or Logos of the other in any manner that negatively affects the reputation of or otherwise reflects unfavorably on the grantor.
2.5 Your Responsibilities. As between you and TurnTo, you acknowledge that you have sole responsibility for products and services marketed on your website, as well as all content and materials appearing on your website. You represent and warranty to TurnTo that you own the right to use customer data received by TurnTo, and that the use, reproduction or transmission of customer data do not and will not infringe or abuse any Intellectual Property Rights, or violate the law or regulation of any applicable jurisdiction, including without limitation any law or regulation relating to unfair competition or privacy. You hereby authorize TurnTo to reproduce, use and distribute all and any part of the customer data for the purpose of performing its services hereunder.
3. Disclosure of Data; Authorized User Accounts; Account Protection.
3.1 Disclosure of Data. You understand and agree that TurnTo may disclose data owned by you to third party service providers whose services help enable the functionality of the TurnTo System or who assist TurnTo with the administration of the TurnTo System, including processing and sending email. These third parties will receive and use such information solely to provide services to TurnTo or on TurnTo’s behalf, in accordance with these Terms and Conditions. You understand and agree that TurnTo may access, preserve and disclose data owned by you and the contents of your account if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to comply with legal processes or to protect the rights, property or safety of TurnTo or the public and that such information may contain personal information. Customer data collected by TurnTo may be stored and processed in the United States or any other country in which TurnTo or its agents maintain facilities. By using the TurnTo System, you consent to any such transfer of information outside of your country.
3.2 Authorized User Accounts. You may assign privileges for your employees or independent contractors to use the administration area of the Services on your behalf (“Authorized Users”). This applies to independent contractors only if they are not competitors of TurnTo. The administration area of the Services and the functionality contained therein (configuration, settings, reporting, alerts, analytics, etc.) may be used solely for your internal consumption. You may not charge any fee for access to the Services. You will promptly notify TurnTo in the event you become aware of any violation of the provisions of these Terms and Conditions. You will likewise obligate your Authorized Users to notify TurnTo of any violation of the terms of these Terms and Conditions becoming known to them.
3.3 Account Protection. You will protect the confidentiality of all account information, including user names and passwords. You will also obligate the Authorized Users to maintain the confidentiality and will ensure that in the event an Authorized User becomes aware of any threat to the security of its login information, the Authorized User will promptly notify you. In the case of a threat to the security of login information, you must either immediately deactivate the concerned user account or notify TurnTo to change the login information for the account.
3.4 Confidentiality. In the course of using the TurnTo System each party may receive certain information relating to the business, finances or technology of the other party (“Confidential Information”). Each party will protect the Confidential Information in its possession or control and will promptly notify the other party of any unauthorized access, theft or loss of any Confidential Information. Except as provided in these Terms and Conditions, neither party may disclose or use for any purpose, or make any copies of, any Confidential Information. “Confidential Information” does not include:
(a) Information that is or becomes generally available to the public through no fault of the receiving party;
(b) Information that the receiving party rightfully possessed prior to receipt from the disclosing party;
(c) Information that is independently developed by the receiving party;
(d) Information that the receiving party rightfully obtains on a non-confidential basis from a third party who has the right to transfer it; and
(e) Information that is required to be disclosed by the receiving party by court order or other lawful governmental action, provided that the receiving party immediately notifies the disclosing party of such requirement so that the disclosing party may attempt to obtain a protective order restricting or preventing such disclosure, and the receiving party cooperates with the disclosing Party to resist such disclosure.
Any Confidential Information will remain the disclosing party’s exclusive property. Within 30 days of termination and by written request of disclosing party, each receiving party will return or destroy, at the option of the disclosing Party, all copies of the Confidential Information of the other Party in its possession or control, provided however; that this destruction shall be subject to the provisions of Section 2.2 above where TurnTo will return your data.
4. Disclaimer of Warranties; Limitation of Liability
4.1 Disclaimer of Warranties. TurnTo represents and warrants that (i) it has all right, title and interest necessary to provide the Services to you under the terms set forth in this Agreement; (ii) the Services will perform materially in accordance with the terms of this Agreement; (iii) the functionality of the Services will not be materially decreased during any Service Term; (iv) TurnTo will use methods and technology consistent with industry standards to detect any viruses, time bombs or other disabling code in the System; (v) TurnTo will use methods and technology consistent with industry standards to maintain the security and integrity of the Services, your Confidential Information and Your Data; and (vi) Services will be performed in a workmanlike manner by individuals with sufficient skill, experience and training to fulfill these Terms and Conditions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TURNTO DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY HARM RESULTING FROM YOUR USE OF THE TURNTO SYSTEM AND SERVICES. TURNTO DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY HARM RESULTING FROM ANY CONTENT, INCLUDING WITHOUT LIMITATION CUSTOMER CONTENT AND CONTENT SYNDICATED UNDER SECTION 10 BELOW, APPEARING ON YOUR WEBSITE OR ELSEWHERE VIA THE TURNTO SYSTEM AND SERVICES. THE TURNTO SYSTEM AND SERVICES ARE PROVIDED “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TURNTO EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TURNTO FURTHER DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY AND PERFORMANCE OF THE TURNTO SYSTEM AND SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE THE TURNTO SYSTEM AND SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE TURNTO SYSTEM AND SERVICES.
4.2 Limitation of Liability. THE AGGREGATE LIABILITY OF EACH PARTY TO THE OTHER AND ITS RESPECTIVE AFFILIATES FOR ALL CLAIMS UNDER OR WITH RESPECT TO THE AGREEMENT SHALL NOT EXCEED THE PURCHASE PRICE AGREED TO BY YOU FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE (WHETHER IN CONTRACT, WARRANTY TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) TO THE OTHER FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, OR THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS, LOSS OR INACCURACY, CORRUPTION OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY. THIS EXCLUSION APPLIES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION 4.2 DO NOT LIMIT THE OBLIGATIONS AND LIABILITY OF EITHER PARTY FOR DAMAGES AWARDED TO THIRD PARTIES PROVIDED IN SECTION 5 OF THESE TERMS AND CONDITIONS. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR THE RESPECTIVE ACTIONS OR OMISSIONS OF ITS AFFILIATES UNDER THESE TERMS AND CONDITIONS.
5.1 Your Indemnity. You will indemnify, defend and hold TurnTo harmless from any third party lawsuit or proceeding brought against TurnTo based upon a third party claim to the extent any such claim arises out of (a) unauthorized use of or changes to the services by you or any Authorized User, (b) use of the Services by you or any Authorized User in violation of any law or regulation, (c) use by you or any Authorized User of any customer data or content provided or received by you under Section 10 below in violation of any law or rights of third parties. Your indemnification will include (1) all attorneys’ fees and costs associated with the defense of such a claim, (2) all damages and costs finally awarded and (3) the full cost of any settlement entered into by you. TurnTo shall (1) notify you of any such claim, (2) provide you with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (to the extent requested by you), and (3) give you full control and sole authority over the defense and settlement of such claim. You will not enter into any settlement or compromise of any such claim without TurnTo’s prior written consent, which consent shall not be unreasonably withheld.
5.2 TurnTo Indemnity. TurnTo will indemnify, defend and hold you harmless from any third party lawsuit or proceeding brought against you based upon a third party claim to the extent such claim arises out of (a) TurnTo’s violation of any laws or rights of third parties due to the Services, (b) TurnTo’s use of your data or your customer data in breach of these Terms and Conditions. TurnTo’s indemnification will include (1) all attorneys’ fees and costs associated with the defense of such a claim, (2) all damages and costs finally awarded and (3) the full cost of any settlement entered into by TurnTo. You shall (1) notify TurnTo of any such claim, (2) provide TurnTo with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (to the extent requested by TurnTo), and (3) give TurnTo full control and sole authority over the defense and settlement of such claim. TurnTo will not enter into any settlement or compromise of any such claim without your prior written consent, which consent shall not be unreasonably withheld.
5.3 Legal Consequences. If your use of the Services is enjoined due to a third party claim or an infringement of rights, TurnTo may, at its expense and within its sole discretion, either (a) procure for you the right to continue using the Services, (b) replace or modify the enjoined Services to make them non-infringing but functionally equivalent, or (c) terminate the enjoined Services and return any fees paid for the enjoined Services not yet rendered.
6. Term and Termination
6.1 Term. Your rights under the Terms and Conditions will commence upon your acceptance of this Agreement, and unless terminated earlier pursuant to these Terms and Conditions, expire upon the expiration or earlier termination of the last Order executed by the parties.
6.2 Termination. If either party is in material breach of this Agreement and fails to cure such material breach within thirty (30) days after receiving written notice thereof from the non-breaching party, then such non-breaching party may immediately terminate this Agreement by giving written notice of termination. Without limiting any other term of this Agreement, any failure by you to timely pay to TurnTo any amounts owing under this Agreement will be considered a material breach of this Agreement. If you fail to timely pay any fees, TurnTo may, without limiting any of its other legal rights and remedies, suspend performance of services under the TurnTo System until TurnTo receives all amounts due.
6.3 Effect of Termination. Upon termination of the Agreement between you and TurnTo for any reason (i) you will pay to TurnTo any fees or other amounts that have accrued prior to the effective date of termination, (ii) all rights granted herein shall terminate, (iii) you will immediately delete any and all TurnTo Brand Names or Logos from the website and (iv) you will provide TurnTo with a written certification signed by your authorized representative certifying that all use of the TurnTo System has been discontinued.
6.4 Survival. In the event of any termination or expiration of the Terms and Conditions for any reason, Sections 2.1, 2.2, 2.3, 4, 5, 6 and 10 shall survive.
6.5 Remedies. You acknowledge that your breach of any of the terms and conditions contained in these Terms and Conditions may cause irreparable harm to TurnTo, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which TurnTo may be legally entitled, TurnTo will have the right to seek immediate injunctive relief in the event of such breach by you or any of your officers, employees, consultants or other agents.
6.6 Late payment. Any payment more than thirty (30) days past due shall accrue interest at a rate of one and one half percent (1 ½%) per month.
7. Support; Updates and New Products; Service Level Agreement.
7.1 Support. During the Term of an Order, TurnTo will provide support for integration and upkeep of the System, including technical services, project management and engineering. An annual allotment of support hours will be specified in the Order to which the support relates. TurnTo will track your hour usage, will alert you if it appears that you are likely to consume more than the allotted amount, and will provide you with your support hour balance on request. Support hours do not carry over from year to year. Engineering time required for bug fixing and for product enhancements that will be of general use to TurnTo’s customers will not be charged to your hour allotment. TurnTo will determine at its sole discretion when engineering work is specific to your use of the System (and so will be charged to your support hour allotment) and when engineering work is general.
7.2 Updates and New Products. Incremental updates and enhancements to the System made by TurnTo for the general use of TurnTo’s customers will be provided at no charge to you. TurnTo in its sole discretion may designate certain major functional updates or enhancements as new products that will be made available to you at an additional charge. If you elect not to purchase such new products, the existing Services will remain available with the material functions and features existing prior to the release of the new product. You will be under no obligation to purchase such new products. From time to time, TurnTo may make changes to the System that require you to modify feeds, installed elements of the System, or other aspects of your integration to enable the System to continue to function properly or at all. TurnTo will provide you with at least 3 months’ notice before making such a change. You agree to make such required modifications to your integration in a timely manner following notification, and in no event will the requirement to make such modifications be cause for your termination of this Agreement or applicable Order the Payment Terms or relieve you of your payment obligations or other obligations under this Agreement or applicable Order.
7.3 Service Level Agreement. TurnTo guarantees 99.7% availability of the TurnTo System, subject to the conditions set forth in this paragraph. TurnTo verifies availability of the TurnTo System by opening a separate connection to the TurnTo System every five minutes, with a 60-second failure threshold. A service disruption is defined as two or more consecutive failed connections (“Disruption”), and will be registered as the number of minutes between the first and last failed tests. Disruptions caused by denial of service attacks, mail flooding, or other attacks directed toward TurnTo’s network of servers, or those caused by the failure of TurnTo’s server infrastructure provider (currently Amazon), are excluded from TurnTo’s availability target. TurnTo will perform scheduled maintenance (“Maintenance”) on its servers on a regular basis. TurnTo reserves two hours per calendar month for Maintenance purposes. Disruptions due to Maintenance are excluded from TurnTo’s availability target. Maintenance is generally performed between the hours of 1:00 AM-3:00 AM Eastern Standard Time. TurnTo provides you with advance notice of Maintenance whenever possible. Under certain conditions, TurnTo may need to perform urgent or emergency preventative maintenance, such as installing security patches. In such instances, TurnTo may not be able to provide you advance notice, and such disruptions are excluded from TurnTo’s availability target.
For any calendar month in which availability as described in the paragraph above is less than 99.7%, you shall receive a credit of that month’s applicable fees toward payment due under the Order that is the subject of the availability claim in future months according to the following schedule:
|Service Availability||Amount of Credit|
|< 99.7%||1 day credited|
|<98.0%||5 days credited|
|<95.0%||1 month credited|
Credits will not entitle you to any refund for fees paid for Services, or for any credit against fees due for any other Orders. Your sole and exclusive remedy for any failure of TurnTo to meet availability in any month is the receipt of a credit as described in this paragraph. Any downtime that is the basis for a successful credit claim cannot be the basis for a future claim. To receive a credit, you must submit a written request to TurnTo within 30 days of the end of the month in which the unavailability occurred.
If you instruct TurnTo to establish a syndication relationship between your site as designated on the Order and the site of another party using the TurnTo System, then TurnTo will cause content you specify to be copied from your TurnTo instance to theirs, and vice-versa. You grant to any site that you have instructed TurnTo to establish a syndication relationship with a revocable (except with respect to content shared prior to the date of revocation), nontransferable license to receive and display such content. Such license flows directly from you to your syndication partner, and is not granted to or assigned by or to TurnTo. Without limiting the provisions of Section 4.1 above, TurnTo expressly disclaims all liability with respect to your relationship with any content provider or content receiver. You may specify business rules as to which content is shared, attribution, links, and other behaviors of the syndication function, among those rules supported by the TurnTo System, and the TurnTo System will apply those rules when the content is displayed through the TurnTo System. If your site downloads and repurposes syndicated content, you must apply the same business rules as when the content is displayed through the TurnTo System. You may instruct TurnTo at any time to discontinue a syndication relationship. No further content sharing will occur, but content shared prior to the cancelation will continue to be covered by the license previously granted – i.e., the other site may continue to use the content you sent them, and you may continue to use the content they sent you. In such event, the business rules applied at the time the syndication relationship was discontinued will continue to be applied to that content.
9. Affiliate Program
Affiliate program. If you use any features of the TurnTo System that cause links that lead to any site covered under an Order from you to be displayed on any site other than those covered under an Order from you (for example, Facebook, Twitter, Pinterest, or a site with which you have established a syndication relationship) (“Links”), and if the site(s) covered under the Order(s) from you have an affiliate program, then you agree to accept TurnTo into the affiliate program(s) of those sites and pay TurnTo for traffic to those site(s) via those Links according to your standard affiliate program terms. (Traffic from Links which lead from one site covered under an Order from you to another site covered under an Order from you will not require payments under this section.) In the event you cease paying TurnTo for this traffic under this Section 11 due to termination or cancelation of this Agreement, an Order, a syndication relationship, or removal of TurnTo from the affiliate program of a site covered under an Order, or any other reason, the Links will be deactivated.
You may not assign your rights or delegate your obligations under the Agreement without TurnTo’s prior written consent. Nothing in the Agreement should be construed to confer any rights to third party beneficiaries. The parties are independent contractors. TurnTo will not export, directly or indirectly, any technology, software or commodities of U.S. origin or having U.S. content provided by you or your direct product to any of the countries or to nationals of those countries, wherever located, expressly prohibited by the U.S. Export Administration Regulations, as modified from time to time, unless authorized by appropriate government license or regulations. Except as otherwise expressly set forth in the Agreement, nothing contained herein will be construed as creating any employment relationship, agency, partnership, joint venture or other joint enterprise between the parties. The Agreement, including the Terms and Conditions, will be governed by and construed in accordance with the laws of the state of New York, without regard to conflict of law principles. Any dispute or claim arising out of or in connection with the Agreement shall be adjudicated in New York County, New York. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. All notices and other communications required by the Agreement must be in writing and will be deemed given when (i) delivered personally; (iii) delivered by overnight courier upon written verification of receipt or (iii) delivered by certified or registered mail, return receipt requested, upon verification of receipt. Except for payment obligations, neither party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder due to strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of the party. The Agreement, together with all referenced TurnTo Policies, all of which are incorporated herein by reference, constitute a single agreement which is the sole and entire agreement between TurnTo and you on the subject matter addressed, and supersede all prior understandings, agreements, representations (oral or written) and documentation relating to such subject matter, as well as the terms and conditions set forth in or on any purchase order, acknowledgement form or similar document you may issue, or printed on any check or other document or instrument transmitting or accompanying payment under the Agreement. If any provision of the Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the Terms and Conditions shall remain in full force and effect. No waiver of breach of this Agreement shall constitute a waiver of any other breach, whether of the same or any other covenant, term or condition. The subsequent acceptance by TurnTo of any breach of a covenant, term or condition shall not constitute a waiver of the right to require performance at any time thereafter, unless such waiver is in writing and signed by TurnTo.