If you create an account with Disqus, you agree to the User Terms of Service. If you are using Disqus comments on your website you are a “Publisher” and you also agree to the Publisher Terms of Service which follow the User Terms of Service below.
DISQUS USER TERMS OF SERVICE.
Disqus, Inc. (“Disqus”, “we”, “us” or “our”) offers an online public comment sharing platform where you may login and create profiles to participate in conversations with peers and enjoy an interactive experience. These Terms of Service (the “Terms”) govern your use of and access to our comment sharing platform, software and website (collectively the “Service”) by using the Service you understand and agree to be bound by these Terms.
THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Use of the Service.
You may only access and use the Service if you agree to be bound by these Terms, are over the age of 13, and are not a person barred from receiving or using the Services under the laws of the applicable jurisdiction. If you are accepting these Terms and using the Service on behalf of a company, organization, government or other legal entity, you represent and warrant that you are authorized to do so. In the event you breach these Terms, or violate the Basic Rules of Disqus, Disqus may, in our sole discretion, revoke your rights to use the Service and terminate your account.
License to Use the Service.
Disqus grants you a non-exclusive, limited, non-transferable, revocable license to access and use the Service in accordance with the Terms and in the manner contemplated hereunder. Disqus reserves all rights not expressly granted herein in and to the Service and the Disqus Content (as defined below). Disqus reserves the right to revoke your license to use the Service at any time and for any reason.
Modifying or Discontinuing the Service.
We are constantly changing and improving Service. We may, without prior notice to you, add or remove functionalities or features, and we may suspend or stop the Service altogether.
By creating a Disqus account, you agree to these Terms. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your account. You may never use another user’s account without permission. You must notify Disqus immediately of any breach of security or unauthorized use of your account. Disqus will not be liable for any losses caused by any unauthorized use of your account. You may control your User profile and how you interact with the Service by changing the settings in your profile settings.
Content on the Services.
You are responsible for your use of the Services and for any content you submit, post, display or otherwise make available on or through the Service (“User Content”), including that such User Content complies with applicable laws, rules, and regulations. You should only provide Content that you are comfortable sharing with others.
Disqus takes no responsibility and assumes no liability for any User Content that you or any other User or third-party posts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Disqus shall not be liable for any damages you allege to incur as a result of User Content.
Any use of or reliance on User Content or materials posted via the Services or obtained by you through the Services is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any User Content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Services, you may be exposed to User Content that might be offensive, harmful, inaccurate, inappropriate for children or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. All User Content is the sole responsibility of the person who originated such User Content. We may not monitor or control the User Content posted via the Services and, we cannot take responsibility for such User Content. You agree that Disqus shall not be liable for any damages you incur as a result of User Content.
Disqus respects the intellectual property rights of others and expects users of the Service to do the same. We reserve the right to remove User Content alleged to be infringing without prior notice, at our sole discretion and without liability to you. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us as described below.
By using the Service you represent and warrant that your User Content does not violate any applicable law or infringe any third party proprietary rights, including but not limited to, any Intellectual Property Rights.
Copyright Infringement: Digital Millennium Copyright Act of 1998 (“DMCA”)
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement under the DMCA and is accessible via the Service, please notify Disqus’ copyright agent at the contact information below. For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Service;
Information reasonably sufficient to permit Disqus to contact you, such as your address, telephone number, and, e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
DMCA Agent Contact Information:
Attn: DMCA Notice Disqus, Inc.
717 Market Street, Suite 700
San Francisco, CA 94105
Please note that this procedure is exclusively for notifying Disqus and its affiliates that your copyrighted material has been infringed. In accordance with the DMCA and other applicable law, Disqus has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Disqus may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Rights Regarding User Content.
You retain your rights to any User Content (“User Content”). By submitting, posting or displaying any Content on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, Disqus a worldwide, royalty-free, non-exclusive, sublicensable, transferable, perpetual and irrevocable license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, distribute, and make derivative works of such User Content in any and all media, technology or distribution methods (now known or later developed). This license authorizes Disqus to make your User Content available, to the rest of the world and to let others do the same. You agree that this license also includes the right for Disqus to provide, promote, and improve the Services and to make User Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion, publication, or otherwise of such User Content on other media and services. Such use by Disqus or other companies, organizations or individuals may be made with no compensation paid to you with respect to your content.
Disqus’ name, logo, designs, trademarks, trade dress, service marks, copyrights, patents or other intellectual property rights in Disqus’ software, images, text, graphics, illustrations, logos, APIs etc. (the “Disqus Content”) is the exclusive property of Disqus or its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or to Disqus Content, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Disqus Content. Use of the Disqus Content for any purpose not expressly permitted by these Terms is strictly prohibited.
Feeds and API
Disqus provides access to portions of its Service via RSS feeds and an API. For the purposes of these Terms, such access constitutes use of the Service. Disqus asks that you use these features respectfully, and as may be outlined in any documentation that we provide. You may not use these or any other features of the Service itself to allow the display of any portion of the Disqus database or reproduce, duplicate or copy any or all of the Disqus Service. Disqus reserves the right to change these features at any time and to disable access to the feeds and the API at any time for any reason or no reason.
Please review the Disqus Service Rules below, in consideration of the license to use the Services you agree to comply with the Service Rules which are part of these Terms and outline what is prohibited on the services. Please also note, Disqus comments often appear in websites and online communities not owned by Disqus, these websites and online communities may have their own rules about content and comments on their site, please respect the rules of the communities in which you are using Disqus to comment.
Bullying; Harassment; Hate Speech. We do not allow bullying or hate speech on the Disqus platform. Hate speech attacks people based on “protected characteristics” which include race, ethnicity, sexual orientation, religious affiliation, sex, gender, gender identity or serious disability or disease. Bullying targets individuals with the intention of degrading or shaming them. Bullying is especially harmful to minors because they may be more vulnerable. Disqus prohibits bullying and hate speech and requires our users to respect each other and comment with the respect and sensitivity of others in mind.
Trademark Rights and Rights of Publicity; Impersonation. Users are required to respect the intellectual property rights of others, and are prohibited from posting content that violates someone else’s copyright, trademark, or right of publicity. Additionally, users are prohibited from impersonating others in a manner that does or is intended to mislead or deceive others. Accounts portraying another person in a confusing or deceptive manner may be banned at Disqus’ discretion.
Safety; Self-Harm. Users are prohibited from promoting or encouraging suicide or self-harm. When we receive reports that a person is threatening suicide or self-harm, we may take a number of steps to assist them, such as reaching out to that person and providing resources such as contact information for our mental health partners.
Violence and Criminal Acts. Users are prohibited from promoting or publicizing violent crime, theft, or fraud. We also prohibit users from making credible threats of violence, serious physical harm, or death. This includes, but is not limited to, promoting, publicizing or threatening terrorist activity, organized hate crime, mass or serial murder, human trafficking, organized violence.
Child sexual exploitation. Disqus prohibits content that sexually exploits or endangers children. If we become aware of apparent child exploitation, we will report it in compliance with applicable law.
Inappropriate Content. Graphic media, including explicit violence, gore, and pornographic content are not allowed.
Deceitful data collection; Malware Collecting or harvesting any personally identifiable information, including account names, from the Service; attempting to interfere with, to compromise the system integrity or security or to decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading data, viruses, worms, or other software agents through the Service accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xiii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
Spam. Users are prohibited from posting or sending Spam through the service. What constitutes Spam is constantly evolving. Generally, Spam means repeated actions that negatively impact others, such as repeatedly posting a comment with the intent to post a thread etc.
The list of rules above is contently evolving. Disqus may update and revise these rules at any time, please review Disqus Basic Rules for more information.
Disclaimers and Limitation of Liability
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, DISQUS, ITS PARENTS, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, AND LICENSORS (THE “DISQUS ENTITIES”) DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE DISQUS ENTITIES DO NOT WARRANT OR REPRESENT AND DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL LIABILITY FOR: (I) THE COMPLETENESS; ACCURACY, RELIABILITY OR CORRECTNESS OF THE SERVICES OR ANY CONTENT; (II) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE OR CONTENT; (III) THE DELETION OF OR FAILURE TO STORE OR TRANSMIT ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED BY THE SERVICE; (IV) THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, SECURE, OR ERROR FREE. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE DISQUS ENTITIES, BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL THE DISQUS ENTITIES BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IN NO EVENT SHALL DISQUS’ CUMULATIVE LIABILITY EXCEED $1,000 TO YOU AT ANY TIME.
THE SERVICE IS CONTROLLED AND OPERATED FROM ITS FACILITIES IN THE U.S.A. THE DISQUS ENTITIES MAKE NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR US IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE ENTIRELY RESPONSIBLE FOR ANY LIABILITY INCURRED BY DOING SO.
Disputes, Choice of Law and Jurisdiction. These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of laws. You agree to resolve any claim, dispute, or controversy (“Claims”) arising out of or relating to these Terms or your use of the Service by binding arbitration by the American Arbitration Association (“AAA”) in Santa Clara County, California under the commercial rules then in effect for the AAA, Nothing in this Section shall be deemed as preventing Disqus from seeking injunctive or other equitable relief from the courts as necessary to protect any of Disqus’ proprietary interests.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Any dispute resolution proceedings relating to these Terms or the Site will be conducted only on an individual basis and not as a class, consolidated, joined or representative action and the parties expressly waive all rights to commence or participate in any class, consolidated or representative action/proceeding. You agree that Disqus’ agreement to arbitrate claims constitutes consideration for such waiver.
U.S. Government Entities.
If you are a federal, state, or local government entity in the United States using the Services in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of California (excluding choice of law).
You agree to defend, indemnify and hold harmless Disqus and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) relating to your use of Service or actions taken through the Service, your User Content or any other data or content transmitted or received by you; or your violation of applicable law, third party proprietary rights or these Terms.
In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect. Disqus’ failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
717 Market Street
San Francisco, CA 94103
PUBLISHER TERMS OF SERVICE AGREEMENT
These Publisher Terms of Service Agreement (the, "Agreement") are entered into by and between Disqus, Inc. (“Licensor”) and the Publisher executing this Agreement electronically through the Licensor’s website. Therefore, in consideration of the mutual covenants of the parties and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows:
1.Access and Use.
1.1 Access. Licensor hereby grants Publisher a non-exclusive, non-transferable right to access and use Licensor’s software application, application program interface (API), website, and software as a service, (the “Service”) during the Term (as defined below). Publisher may integrate the Service on any web sites owned, operated or controlled by Publisher as set forth in the Service Order, each an “Applicable Site”. Publisher may add Applicable Sites not set forth in the Service Order upon execution of an additional Service Order which shall be governed by this Agreement. Publisher shall not in any way deliver, transfer, or otherwise provide access to or make available the Service to any third parties except as specifically permitted by this Agreement. Publisher is solely responsible for the activity that occurs on Publisher’s account, and is required to keep its account password secure. In the event of any breach of security or unauthorized use Publisher’s account, Publisher shall notify Licensor immediately. Licensor will not be liable for any losses caused by any unauthorized use Publisher’s account.
1.3 Updates. The parties agree that Licensor may make updates, modifications or improvements (collectively, “Updates”) to the Service from time to time in its sole discretion.
2. Payments and Fees.Publisher shall pay Licensor all fees set forth on the Service Order, including any sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by Licensor by any authority in connection with this Agreement, excluding taxes based upon Licensor's net income (collectively, the “Fees”).
2.1 Paid Subscription. In the event Publisher elects a Paid Subscription for the Service, the Fees for the Service shall be billed in advance monthly and shall be due thirty (30) days from the date of invoice.The first invoicing will occur immediately after execution of this Agreement. Any additional customization or setup fees for additional integration work or work required to add Applicable Sites shall be set forth on a subsequent Service Order Form which shall be governed by the terms of this Agreement. Publisher shall be responsible for interest on all Fees overdue by more than thirty (30) days from the date on the invoice at a rate of the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by applicable law. Such interest will accrue on a daily basis and be compounded on a monthly basis. Publisher will also be responsible for payment of all reasonable expenses (including reasonable attorneys’ fees and costs) incurred by Licensor in collecting any overdue amounts.
2.2 Advertising; Revenue Share. If Publisher has selected a plan that is supported by advertising, Publisher agrees that Licensor may include advertisements and/or content provided by Licensor and/or a third party (collectively “Ads”) as part of the Service. Disqus, in its sole discretion, determines whether the Publisher’s Applicable Site(s) are eligible to receive payments for running advertisements. Publisher agrees to comply with any specifications that may be required by Licensor from time to time to enable proper delivery, display, tracking and/or reporting of Ads. As a prerequisite to earning Revenue Share, Publisher shall be required to submit valid payment information and relevant tax forms via Licensor’s publisher dashboard. Licensor shall have no obligation to pay Publisher in the event Licensor has not received payment from its advertisers.Publisher acknowledges and accepts the risk that third parties may generate impressions, clicks or other actions by fraudulent or improper means (“Fraudulent Activity”). Licensor shall have no responsibility or liability to Publisher, and shall have no obligation to pay Publisher, in connection with any Fraudulent Activity. Licensor shall pay Publisher the Revenue Share due to Publisher ninety (90) days from the end of each calendar month that Ads are running on the Applicable Site(s). Licensor shall not distribute Revenue Share to Publisher is the amount due to Publisher is less than $100. Publisher shall be required to claim Revenue Share from Licensor within three (3) months of the date Revenue Share was distributed to Publisher. In the event Publisher does not claim Revenue Share within such time period, Licensor shall have the right to reclaim such Revenue Share. Licensor reserves the right, in its sole discretion, not to run Ads on the Applicable Site(s) for any reason, or no reason, including, but not limited to, quality of the content or content requirements from Licensor’s advertisers.
3. Reporting and Audit Rights. In the event that Publisher has a Paid Subscription to use the Service, the amount of such Paid Subscription is determined based on the Applicable Site(s) page views per month (the “Monthly License Fee”).Publisher shall be required to track and maintain accurate records of the number of average monthly page views per each Applicable Site (“Page Views”) and shall provide such records of Page Views to Licensor after the first 60 days of the Agreement, and thereafter, 15 business days prior to the end of each twelve (12) month period. Licensor shall use such records to prepare the invoice for the following twelve (12) months’ Monthly License Fee in accordance with the fee tiers set forth in the Service Order. Licensor shall have the right, during normal business hours, upon at least five (5) days’ advance written notice to Publisher and no more than twice annually, to audit, examine, inspect, review and make copies or take extracts from, all books and records of Publisher relating to the tracking and reporting of Page Views. If such audit reveals an under-reporting of page views by an amount which would put Publisher in a higher fee tier, than Publisher shall promptly (a) pay to Licensor the difference between the amount paid and the fee tier in which the Publisher should have been; and (b) reimburse licensor for all reasonable costs incurred by Licensor in performing such audit (including reasonable attorneys’ fees, expenses, and costs).
4. Data Ownership and Privacy.
4.1 Data Ownership. Licensor shall own all rights, title and interest in and to the comments, content, data and information that is displayed, uploaded, exchanged, transmitted or collected through the Service as provided to the Publisher (the “Disqus Personal Data”). Licensor hereby grants Publisher a limited, non-exclusive and revocable license to use the Disqus User Data for comment moderation and analytics purposes only (the “Permitted Purpose”).
4.2 Data Processing. For the purposes of this clause, the terms "controller", "data subjects", "personal data", "processor", "processing", and “supervisory authority” shall have the meaning given to them by the European Regulation 2016/679 (“GDPR”). Licensor shall be the controller of the Disqus Personal data, and Publisher shall be the processor and (i) process Disqus Personal Data only in accordance with the Permitted Purpose. If Publisher is required to process Disqus Personal Data for any other purpose by a law to which Publisher is subject, Publisher shall inform Licensor of this requirement before the processing, unless that law prohibits this on grounds of public interest, (ii) ensure that its personnel and subcontractors who have access to the Disqus Personal Data have committed themselves to confidentiality and are aware of and comply with Publisher's duties and their personal duties and obligations under this Agreement (iii) implement appropriate technical and organizational security measures to ensure a level of security appropriate to the risks that are presented by the processing of Disqus Personal Data. In case of a personal data breach which affects Disqus Personal Data, Publisher will notify Licensor without undue delay after becoming aware of it, (iv) taking into account the nature of the processing, assist Licensor by appropriate technical and organizational measures insofar as it is possible to fulfill Licensor's obligations to respond to requests from data subjects exercising their rights; (v) taking into account the nature of the processing and the information available to Publisher, assist Licensor, at Licensor's cost, to ensure compliance with the obligations under the GDPR with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (vi) upon termination of this Agreement or upon Licensor's request, destroy or return all Disqus Personal Data to Licensor (unless a law requires storage of the Disqus Personal Data), and (vii) make available to Licensor all information reasonably necessary to demonstrate compliance with the obligations laid down in this section and allow for and contribute to audits, including inspections, conducted by Licensor or an auditor mandated by Licensor. Licensor acknowledges and agrees that Publisher may retain its affiliates and other third parties as sub-processors (all together "Sub-Processors") in connection with the provision of the Services having imposed on such Sub-Processors the same data protection obligations as are imposed on Publisher under this Agreement. Publisher will be liable to Licensor for the performance of the Sub-Processors' obligations. Publisher will inform Licensor in advance of any changes concerning the addition or replacement of third party processors.
5. Intellectual Property. Notwithstanding anything to the contrary in this agreement, all intellectual property rights (a) owned or licensed by a party before the date of this agreement and (b) created, developed or licensed by that party after the date of this Agreement independently of this Agreement shall continue to vest in that party or its licensors. Publisher acknowledges that all intellectual property rights in the Service (including any improvements, enhancements and modifications thereto), Licensor’s Confidential Information and any other software, data, or information provided or made available to Publisher under this Agreement (together the “Licensor’s Intellectual Property”) shall belong to Licensor and Publisher shall have no rights in or to Licensor’s Intellectual Property other than the right to use it in accordance with the terms of this Agreement. Unless otherwise agreed to in writing, Publisher shall not remove or obscure any copyright, trademark or patent notice that appears on the Service.
6. Confidential Information
6.1 Confidential Information. In connection with this Agreement, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”).Confidential Information means any non-public data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, source code, plans, financial information, Publisher and supplier lists, forecasts, and projections. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party's possession free of any confidentiality obligations with respect thereto; (v) can be documented as independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction. Each party shall use reasonable measures to maintain the Confidential Information of the other party in confidence and shall not disclose, publish or copy any part of such Confidential Information, to any third party.Each party shall only use the Confidential Information of the other party for the purpose of this Agreement and shall limit disclosures to any employees on a strict need-to-know basis.Notwithstanding the foregoing, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice (if permissible) to the other party to contest such order or requirement.Upon request, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party.
7. Representations and Warranties.
7.1 Mutual Representations. Each party represents and warrants to the other party that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement and the performance of its obligations hereunder, do not and will not violate any agreement to which it is a party or by which it is bound; and (iii) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms.
7.2. Licensor Representations. Licensor makes the following ongoing representations and warranties: (i) that Licensor’s software is not contaminated by harmful code (e.g., self-propagating program instructions commonly called viruses or worms); and (ii) that if Licensor software contains any third party software, Licensor has all rights necessary to license such software.
7.3 Publisher Representations. Publisher represents and warrants to Licensor that: (i) it owns, operates, or controls all Applicable Sites; (ii) the Applicable Sites do not contain materials that infringe or violate any third party proprietary rights including, but not limited to, third party intellectual property rights, or materials that violate any applicable laws, rules, or regulations; and (iii) the Applicable Sites do not contain any harmful or disabling software code, including without limitation any virus, time-bomb or trojan horse.
7.4 Disclaimer of Warranties. except for the express warranties provided for herein, the service, and any support services are provided to Publisher “as is” and Licensor expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and noninfringement, and any warranties arising out of course of dealing, usage, or trade. Licensor does not warrant that the service or any updates will meet Publisher's specific requirements or that the operation of the service or updates will be completely error-free or uninterrupted. Licensor shall not be liable to Publisher for any inoperability of the service or for any loss of information or other injury, damage or disruption of any kind.
8. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICE AND/OR UPDATE(S), WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL LICENSOR’S CUMULATIVE LIABILITY TO THE OTHER EXCEED THE FEES PAID TO LICENSOR BY PUBLISHER DURING TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY.
9.1 Licensor. Licensor shall indemnify, defend and hold harmless Publisher and its affiliates, and their respective shareholders, officers, directors, employees, agents, successors and assigns from and against any and all third party claims for losses, liabilities, costs, expenses (including amounts paid in settlement and reasonable attorneys’ fees and expenses), penalties, judgments and damages (“Losses”) resulting from any claim by a third party that the Services or infringe or violate the intellectual property rights of any third party, provided, in each case, that Licensee is promptly notified in writing of the claim; (ii) Licensor has sole control of the defense and any negotiations for the settlement of such claim; and (iii) the indemnified party provides to Licensor, at Licensor’s expense, with all reasonable assistance, information, and authority necessary to perform the above.Should the Services Licensor's opinion, be likely to become, the subject of a claim of infringement, Licensor may, at its option and expense, either procure for Publisher the right to continue using the Services or replace or modify the Services or Work Product in order to make them non-infringing.
9.2 Publisher. Publisher agrees to indemnify, defend and hold harmless Licensor, its affiliates and their respective officers, directors, and employees from and against any and all Losses to the extent that such is based upon any third party claim in connection with (i) Publisher’s breach of any of its representations or warranties made hereunder; (ii) Publisher’s violation of any applicable laws, rules or regulations, including, but not limited to, any data protection and data privacy laws and regulations and industry association guidelines; or (iii) Publisher’s violation of any third party intellectual property right.
10. Term and Termination
10.1 Term. This Agreement shall commence on the Effective Date and shall continue for an initial term of twelve (12) months following the Launch Date (the “Initial Term”). After the expiration of the Initial Term, this Agreement shall automatically renew for additional twelve (12) month periods unless either party gives not less than ninety (90) days’ prior written notice of its intention not to renew (the initial term and any Renewal Term collectively referred to as the “Term”).
10.2 Termination. This Agreement shall terminate: (i) by a party thirty (30) business days after the other party’s receipt of written notice that such party is in material breach of any of the terms or conditions set forth in this Agreement, unless such party cures such breach within said thirty (30) business days period or (ii) upon written notice if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated its business voluntarily or otherwise, and same has not been discharged or terminated within ninety (90) days. Notwithstanding the foregoing, Licensor may immediately and without prior notice terminate or suspend Publisher’s access to the Service in the event Licensor reasonably believes that continued Publisher access or storage may harm the Service, expose Licensor to liability or is necessary to comply with applicable law.
10.3 Obligations Upon Termination. Upon the effective date of expiration or termination of this Agreement for any reason, whether by Publisher or Licensor, Publisher’s right to use the Service shall immediately cease. It is Publisher’s sole responsibility to download User Data; Licensor has no obligation to make any data available to the Publisher following the date of termination. Promptly upon expiration or termination of this Agreement for any reason, Publisher shall pay any unpaid and outstanding Fees due to Licensor that have accrued as of the date of expiration or termination and Publisher shall return to Licensor, or certify the destruction of, all copies of the Licensor’s Confidential Information.
11. General Provisions
11.1 Severability and Waiver. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties.The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
11.2 Independent Contractors. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.Publisher may not assign any of its rights or obligations under this Agreement to any other entity without the prior written consent of Licensor, which shall not be unreasonably withheld.
11.3 Assignment. Neither party may, or shall have the power to, assign this Agreement without the prior written consent of the other; provided, however, that either party may assign its rights and obligations under this Agreement without the approval of the other party to any subsidiary or Affiliate or successor in connection with a merger, consolidation, sale of all of the equity interests of the party, or a sale of all or substantially all of the assets of the party to which this Agreement relates; provided, that in no event shall such assignment relieve such party of its obligations under this Agreement. Subject to the foregoing, this Agreement shall be binding on the parties hereto and their respective successors and assigns.
11.4 Entire Agreement. This Agreement, including any exhibits and schedules attached hereto, constitutes the entire agreement between the parties on this subject matter and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. Neither Party will be bound by, and each party specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this agreement).No amendment or modification of this Agreement shall be made except by a writing signed by both parties.
11.5 Survival. The provisions of this Agreement, which by their nature are intended to survive after termination or expiration of this Agreement shall so survive the expiration or termination of this Agreement regardless of the reason or reasons therefore.
11.6 Freedom of Action. Either party is free to enter into similar agreements with others and may design, develop, manufacture, acquire or market competitive products or services. Either party may assign and re-assign its employees in any way it may choose and neither party is restricted in any way from hiring or soliciting employees of the other.
11.7 Counterparts Acceptable. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
11.8 Publicity. Licensor shall be entitled, without prior consultation with or approval of the Publisher, to make press releases or other public disclosures with respect to this transaction. Publisher grants Licensor a non-exclusive license during the Term to use its name and trademarks in marketing materials, website or customer lists; provided, that Publisher has the right to notify Licensor in writing if it does not agree to any of the foregoing uses of its name and trademarks.
11.9 Force Majeure. Except for payment obligations, neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform, in full or in part, its obligations hereunder, provided that there is due diligence in attempted performance under the circumstances and that such delay or failure is due to fire, earthquake, unusually severe weather, strikes, government sanctioned embargo, flood, act of God, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier, or any other circumstance substantially beyond the control of the party to be charged.
11.10 Governing Law; Jurisdiction. The validity, interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of California and each party irrevocably submits to exclusive jurisdiction and venue in the courts located in Santa Clara County, California. The United Nations Convention on contracts for the International Sales of Goods shall not apply. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement. Licensor shall be entitled to collect its reasonable attorney’s fees, costs and expenses in any action brought to seek amounts past due or to otherwise enforce rights hereunder.
11.11 Notice. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested) or sent by email, and on the date the notice is sent when sent by verified facsimile or email, in each case to the respective Parties at the address first set forth hereto.