Publitas Master Subscription Services Agreement
This Publitas Master Subscription Services Agreement (Agreement) is between Publitas.com B.V., and the entity or individual below (Customer), and is dated as of the date of Publitas’ Order (as defined below).
Last Modified: March 1, 2017
This Agreement provides Customer access to an online subscription service consisting of web-based applications and a platform provided by Publitas at www.publitas.com to upload, produce, host and deliver digital publications within the Publitas server environment under the terms below (Service which for the avoidance of doubt includes the technology provided by Publitas as part of the Services). This Agreement contemplates one or more orders for the Services executed by the parties (Orders), which Orders are governed by the terms of this Agreement. Customer can create digital publications by using the animated publication technology provided as part of the Services.
2. Purchased services
Publitas will make the Services available to Customer under the terms of this Agreement and the relevant Order, during the Term of that Order.
3. Use of services
- Publitas Responsibilities. Publitas must (i) provide basic support for the Services at no additional charge, (ii) use commercially reasonable efforts to make the Services available 24 hrs/7 days a week, except for (x) scheduled outages (which will be communicated in advance, if practicable), OR (y) unavailability caused by force majeure.
- Customer Responsibilities. Customer (i) is solely responsible for Customer Content and the means by which it acquires the Customer Content, (ii) must use commercially reasonable efforts to prevent unauthorized access to the Services, and notify Publitas promptly of any such unauthorized access, and (iii) must use the Services only in accordance with applicable government law and rules.
Customer may not (w) sell, resell, rent or lease the Services, (x) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (y) interfere with or disrupt the integrity or performance of the Services or any of its third-party data, OR (z) attempt to gain unauthorized access to the Services or their related systems or networks.
4. Payment terms
Customer must pay all fees in conformity with the specifications in the Order relevant to the applicable Service. Unless specified otherwise in the applicable Order, fees are due within 30 days of receipt of an invoice, plus applicable transaction based taxes. Customer and Publitas shall work together in good faith to resolve any disputed invoices within fourteen (14) days of Customer’s notice to Publitas of the dispute.
- Term. Each Order will specify the initial term (Term).
- Renewal Term. The Term automatically renews for a period as specified in the relevant Order, unless either party gives the other prior written notice of cancellation for the notice term as specified in the relevant Order.
6. Proprietary rights
- Reservation of Rights by Publitas. The technology provided by Publitas as part of the Services is the proprietary property of Publitas, and all right, title and interest in the Services, including all associated intellectual property rights, remain only with Publitas. No rights are granted unless specifically provided in this Agreement.
- Customer Restrictions. Customer shall not, i) Copy, reproduce or otherwise create derivative works or adaptations of the Services, ii) reverse engineer the Services, iii) distribute or resell the Services to third parties for a fee, or as part of another service or product; or use the Services in a service provider capacity for a fee, or as part of another service or product; unless Customer purchased the Service under the ‘Publitas Reseller Order’ in which case the Service may be used as part of a value-added service Customer provides to its customers, iv) remove or modify any proprietary marking or restrictive legends in the Service, v) use any automatic device or program or manual process to monitor, frame, copy or reproduce the Services, OR vi) access the Services to (w) build a competitive product or service, or (x) copy any feature, function or graphics of the Service.
- Customer Owned and Generated Content. All uploaded, posted and generated content, images and files under Customer’s account remain the sole property of Customer, as between Publitas and Customer (Customer Content).
7. Mutual confidentiality
- Definition of Confidential Information. Confidential Information means all confidential information disclosed by a party (Disclosing Party) to the other party (Receiving Party), whether verbally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Confidential Information of each party includes the terms of this Agreement and all Orders.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, OR (iv) was independently developed by the Receiving Party.
- Protection of Confidential Information. The Receiving Party must use the same degree of care that it uses to protect its confidential information (in no event less than reasonable care) AND not disclose or use any Confidential Information of the Disclosing Party for any purpose (other than within the scope of this Agreement). The Receiving Party must limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less restrictive than those in this Agreement.
In the event that the Receiving Party or anyone to whom the Receiving Party discloses the Confidential Information is required by applicable law, rule or regulation or the rules and regulations of an applicable stock exchange, or receives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall: (i) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such a requirement or request; (ii) consult with the Disclosing Party on the advisability of taking steps to resist or narrow such request; (iii) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential Information that is required by applicable law, rule or regulation or the rules and regulations of such stock exchange to be disclosed, as the Receiving Party is advised by counsel; and (iv) cooperate fully with the Disclosing Party in its efforts to obtain (at the sole cost and expense of the Disclosing Party) an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information that is required to be disclosed.
8. Warranty and remedy
- Limited Warranty. Publitas warrants (i) that commercially reasonable efforts will be made to maintain the online availability of the Services for a minimum of 98% availability in any given month (excluding Publitas scheduled outages), (ii) the functionality of the Services will not materially decrease and the customer support will not adversely change.
- Limited Remedy and Disclaimer. Customer’s exclusive remedy and Publitas’ sole obligation for breach of the warranty in a)(i) immediately above will be for Publitas to provide a credit (if not applicable to Customer then a refund), for the month in question; provided that Customer notifies Publitas of such breach in writing within 30 days of the breach.
PUBLITAS DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY (AS THE CASE MAY BE) AND FITNESS FOR A PARTICULAR PURPOSE.
9. Exclusion of damages and limitation of liability
- Exclusion of Certain Damages. EXCEPT FOR INDEMNIFIED CLAIMS AND LIABILITY FOR DEATH OR PERSONAL INJURY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION.
- Limitation of Liability. EXCEPT FOR INDEMNIFIED CLAIMS AND LIABILITY FOR DEATH OR PERSONAL INJURY, EACH PARTY’S LIABILITY FOR ALL OTHER DAMAGES RELATING TO, OR ARISING UNDER, THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) MAY NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING 12 MONTHS FOR THE SERVICES. EACH PARTY’S LIABILITY FOR INDEMNIFIED CLAIMS AND CLAIMS INVOLVING DEATH OR PERSONAL INJURY SHALL NOT EXCEED A TOTAL OF ONE MILLION DOLLARS ($1,000,000 USD) DURING THE TERM.
10. Mutual indemnity
- Publitas Indemnity. Subject to the limitations of liability set forth herein, Publitas will defend Customer against any claim, demand, suit, or proceeding (Claim) made against Customer by a third party alleging that the use of the Services as permitted under this Agreement infringes or misappropriates the intellectual property rights of a third party, and subject to the limitations of liability set forth herein Publitas will indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with such Claim; provided that Customer shall (i) promptly give Publitas written notice of the Claim; (ii) give Publitas sole control of the defense and settlement of the Claim (provided that Publitas may not settle any Claim unless the settlement fully releases Customer of all liability); and (iii) provides Publitas all reasonable assistance, at Publitas’ expense for out of pocket items.
- Customer Indemnity. Customer must defend Publitas against any Claim made against Publitas by a third party alleging that any Customer Content, or Customer’s use of the Services in violation of this Agreement, infringes any third party right, or violates any governmental law or rule, and must indemnify Publitas for any damages finally awarded against, and for reasonable attorney’s fees incurred by Publitas in connection with any such Claim; provided that Publitas shall (i) promptly give Customer written notice of the Claim; (ii) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement fully releases Publitas of all liability); and (iii) provide Customer all reasonable assistance, at Customer’s expense for out of pocket items.
This section states the entire liability of the parties with respect to the types of claims mentioned.
11. Termination and suspension of service
- Mutual Termination for Material Breach. If either party is in breach of any material term of this Agreement, the other party may terminate this Agreement at the end of a 30-day notice/cure period, where the breach has not been cured.
- Actions Upon Termination. Upon any termination as provided in a) above by Customer, Publitas must refund any prepaid fees covering the remainder of the Term. Upon any termination as provided in a) above by Publitas, Customer must pay any unpaid fees covering the remainder of the Term of all Orders.
- Suspension of Service for Violations of Law or Policy. Publitas may immediately suspend the Services and remove Customer’s digital publications if it in good faith believes that, as part of using the Services, Customer may have violated a governmental law or rule, or court order, or otherwise violated Publitas’ Acceptable Use Policy. Publitas may try to contact Customer in advance, but it is not required to do so.
12. Acceptable use policy
Publitas ‘Acceptable Use Policy’ is located at https://www.publitas.com/aup/ and is incorporated into this Agreement for all purposes.
13. Governing law and non-exclusive jurisdiction
With respect to Customers located in all other countries, this Agreement is governed by the Laws of the Netherlands, without regard to the choice or conflicts of law provisions of any jurisdiction. Any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination, shall be settled by competent Dutch court and in force at the time when such proceedings are commenced. The place of court will be Amsterdam, the Netherlands.
14. Miscellaneous other terms
- This Agreement constitutes the entire agreement between Customer and Publitas and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer may not assign or transfer this Agreement or an Order to a third party, except the Agreement with all Orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of Customer.
- The parties are independent contractors, and no partnership, joint venture or franchise is created. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Notwithstanding what is provided in Customer’s form purchase ordering document, any additional or conflicting terms are rejected by Publitas and do not apply.
- If there is an inconsistency between this Agreement and an Order, the Order prevails.
- Any terms that by their nature survive termination or expiration of this Agreement, will survive.
- Publitas may amend any term or provision in this Agreement at any time, subject to thirty (30) days prior notice.