This Publish2 Access Agreement (the "Agreement") is entered into by and between Publish2, Inc., a Delaware corporation, having principal offices at 19309 Winmeade Drive, Suite 207, Lansdowne, Virginia 20176 ("Publish2") and the entity agreeing to the terms herein ("Customer"). This Agreement will be effective as of the date you select the checkbox below and click "Submit" (the "Effective Date"). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these terms and conditions; (ii) that you have read and understand this Agreement; and (iii) that you agree, on behalf of the party that you represent, to this Agreement. If you don't have the legal authority to bind, please do not click the "I Accept" button below. This Agreement governs Customer's access to and use of the Service (as defined below), except where Publish2 and Customer have entered into a Paid Access Agreement, which shall supersede this Agreement.
1.1. Grant. Subject to the terms of this Agreement, Publish2 hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the functionality of the Service, as hosted by or on behalf of Publish2 (the "Access Rights"). "Service" means Publish2’s software offerings as defined in Section 1.2. The Service shall be accessed remotely as mutually agreed by the parties and will not be installed locally at Customer’s facilities. Customer’s Access Rights shall be subject to the scope of use set forth in Section 1.2.
1.2. Service. The Access Rights are granted to Customer for the purpose of using Publish2’s Service to receive content from or distribute content to customers of Publish2's premium paid version of the Service. Customer may also join a Co-op and access content shared by other Co-op members on Publish2.com. Publish2's automated export capabilities used to deliver content into Customer's or other third-party content management systems or applications are only available through Publish2's premium paid version of the Service.
1.3. Support. Publish2 shall provide support for the Service as follows, and host, support and make the Service available to Customer pursuant to this Agreement. Publish2 shall use commercially reasonable efforts to maintain the Service’s availability on a 24x7 basis, excluding scheduled maintenance, and to provide notice prior to such maintenance. Publish2 shall provide an online support desk during business hours (9:00 am to 5:00 pm, eastern time), with SMS support after hours.
1.4. Updates. The Access Rights shall include access to all software enhancements, updates, error corrections and releases made generally available by Publish2 to its other customers at no additional charge, as well as all enhancements, updates, error corrections and releases to the applicable third party software that Publish2 receives from the applicable vendors.
1.5. Customer Obligations. Customer will, at Customer’s expense and sole discretion: (i) cooperate with Publish2 in connection with Publish2 and delivery of the Access Rights; (ii) allow Publish2 reasonable remote and on-site access to Customer’s systems for the purpose of providing access to the Service or resolving reported problems, subject to Publish2 complying with Customer’s reasonable security and access policies provided by Customer to Publish2 in advance; (iii) provide information concerning Customer’s operations, answer questions, make decisions, and give approvals, all as necessary for Publish2 to perform its obligations under this Agreement; and (iv) provide resources from Customer’s vendors and business partners from whom Publish2 needs data, application interfaces and other information in order to perform its obligations under this Agreement. Publish2 shall not be responsible for Customer’s acts or omissions, modifications to or misuse of the Service, or hardware, software or services provided by or on behalf of Customer.
1.6. Modification. Except as provided in Section 10.2, Publish2 reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement at http://www.publish2.com/about/terms-of-service/ or such URL as Publish2 may provide. Customer is responsible for regularly reviewing any updates to this Agreement. Any changes or modifications to this Agreement will become binding (i) when made in a writing executed by both parties, (ii) by Customer's online acceptance of updated terms, or (iii) after Customer's continued use of the Service after such terms have been updated by Publish2.
Customer’s Access Rights granted under this Agreement may not be sold, assigned, leased, sublicensed, or otherwise transferred or made available for use by third parties, in whole or in part, by Customer without Publish2’s prior written consent. Customer shall not gain or attempt to gain unauthorized access to any portion of the Service, or its related systems or networks, for use in a manner that would exceed the scope of the Access Rights granted under this Agreement, or facilitate any such unauthorized access for any third party. Customer shall not reverse engineer, decompile, or disassemble any Service or otherwise attempt to discover the source code to the Service nor permit any third party to do so. Customer may not reproduce or copy the Service, in whole or in part.
Provided that Publish2 continues to offer the Service to Customer, Pubish2 will continue to provide a version of the Service (with substantially the same services as those provided as of the Effective Date) free of charge to Customer; provided that such commitment may not apply to new opt-in services added by Publish2 to the Service in the future. For sake of clarity, Publish2 reserves the right to offer a premium paid access version of the Service for a fee.
Customer may discontinue use of the Service at any time. Except as provided in Section 10.2, Publish2 reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice. Customer agrees that Publish2 may at any time and for any reason terminate this Agreement and/or terminate the provision of all or any portion of the Service. Notwithstanding the foregoing, Publish2 will provide at least thirty (30) days notice to Customer prior to terminating or suspending the service (if provided to Customer); provided that such service may be terminated immediately if (i) Customer has breached this Agreement or (ii) Publish2 reasonably determines that it is commercially impractical to continue providing such service in light of applicable laws. Customer agrees that Publish2 shall not be liable to Customer or any third party for any modification, suspension, or termination of the Service. Sections 4 (Termination), and 10 (General) shall survive the expiration or termination of this Agreement.
5.1. Publish2 Web Sites and Service. As between Customer and Publish2, Publish2 retains all ownership of, and all intellectual property rights in, Publish2’s web sites, the Service and all software, equipment, processes and facilities utilized by or on behalf of Publish2 to provide access to the Service, and all modifications, customizations, enhancements, updates or derivative works related to the foregoing, including but not limited to all patents, trademarks, copyrights, trade secrets, and other property or intellectual property rights. Customer shall acquire no rights therein other than those limited rights of access specifically conferred by the terms of this Agreement. Customer may not create derivative works based upon the Service in whole or in part, or develop or request third parties to develop or modify any software based on ideas, processes or materials incorporated into the Service. Customer shall not delete, remove, modify, obscure, fail to reproduce or in any way interfere with any proprietary, trade secret, or copyright notice appearing on or incorporated in any Service. All rights related to the Service that are not expressly granted to Customer under this Agreement are reserved by Publish2.
5.2. Customer Web Sites and Service. As between Customer and Publish2, Customer retains all ownership of, and all intellectual property rights in, Customer’s publishing systems, web sites, and products. Publish2 shall acquire no rights therein other than those limited rights specifically required to perform its obligations hereunder and provide the Access Rights conferred by the terms of this Agreement. Publish2 shall not delete, remove, modify, obscure, fail to reproduce or in any way interfere with any proprietary, trade secret, or copyright notice appearing on or incorporated in any of Customer’s web sites or Service. All rights related to Customer’s web sites and Service that are not expressly granted to Publish2 under this Agreement are reserved by Customer.
5.3. Data. Customer retains all ownership of all Customer data and content provided Publish2, entered into, generated and/or managed by Customer and its users through use of the Service (the "Data"). Publish2 may, either directly or through a third party, gather and store Data as necessary to provide access to the Service and to process and generate reports on such Data.
6.1. Definition; Non-Disclosure. Each party acknowledges that it may have access to certain confidential information of the other party concerning the other party’s business, plans, employees, and other information held in confidence by the other party ("Confidential Information"). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Publish2’s Confidential Information includes, but is not limited to, the Service and all software (including APIs, software tools, etc.), equipment, processes and facilities utilized by or on behalf of Publish2 to provide the Access Rights, including but not limited to all source code, development plans, screen displays and documentation related thereto. Customer’s Confidential Information includes, but is not limited to, Customer’s web sites, Service and Data. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as necessary to meet its obligations under this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Upon the expiration of this Agreement, each party will return or destroy all documentation in any medium that contains or refers to the other party’s Confidential Information.
6.2. Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
6.3. Notice of Breach. Each party will: (i) notify the other party promptly of any material unauthorized possession, use or knowledge, or attempt thereof, of the other party’s Confidential Information by any person that may become known to such party; (ii) promptly furnish to the other party details of the unauthorized possession, use or knowledge, or attempt thereof, and use reasonable efforts to assist the other party in investigating or preventing the recurrence of any unauthorized possession, use or knowledge, or attempt thereof, of Confidential Information; (iii) use reasonable efforts to cooperate with the other party in any litigation and investigation against third parties deemed necessary by the other party to protect its proprietary rights; and (iv) promptly use reasonable efforts to prevent a recurrence of any such unauthorized possession, use or knowledge of Confidential Information.
7.1. Authority. Each party warrants that it has the right and power to enter into this Agreement.
7.2. Non-Infringement. Publish2 warrants that the use of the Service shall not infringe upon any United States patent, trademark or copyright of any third party.
7.3. Data Rights. Customer is solely responsible for obtaining all necessary rights and consents to enter, generate and manage the Data using the Service through the Access Rights, and hereby warrants that providing the Data to Publish2, and use of the Data in connection with the Service, under this Agreement will not violate or infringe the rights of any third party.
7.4. Viruses. Each party shall use commercially reasonable efforts to limit on its systems software code whose purpose is to disrupt, damage or interfere with systems, software, or data ("Viruses") and to avoid introducing Viruses into the other party’s systems through the access and use of the Service. Such efforts shall include, without being limited to, the use of commercially reasonable virus protection, firewall and security software.
7.5. Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH ABOVE, THE ACCESS RIGHTS AND Service ARE PROVIDED "AS IS." PUBLISH2 AND ITS LICENSORS DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND PUBLISH2 EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES. Publish2 does not warrant that: (i) the Access Rights or the operation of the Service shall be uninterrupted or error free; (ii) functions contained in the Service shall meet the Customer’s requirements; or (iii) the Service shall operate in combination with other hardware or software, other than hardware and third party software expressly approved or recommend by Publish2. Customer acknowledges and agrees that Publish2 and its licensors are not responsible for: (a) the accuracy or integrity of any Data submitted by Customer or its users; (b) the performance of Customer’s or its users’ equipment, web sites or software; (c) delivery of services or connectivity provided by third parties to Customer and its users, even if such third parties were identified by Publish2; or (d) any downtime, loss or corruption of Data that occurs as a result of transmitting or receiving data or viruses via the Internet.
8.1. Service. Publish2 will defend, indemnify and hold Customer harmless from and against any loss, cost and expense that Customer incurs in connection with a third party claim that use of the Service infringes any United States patent, trademark or copyright of others. Publish2 shall have no liability for any claim of infringement to the extent that such claim is based on modifications to the Service by anyone other than Publish2 or its contractors, modification of the Service made in accordance with Customer’s instructions, or the use or combination of the Service with software or other materials not provided by Publish2. In addition, Customer shall forfeit all rights under this Section 8.1 if it alters or modifies the Service in any manner. Should the Service become, or in Publish2’s opinion be likely to become, the subject of a claim of infringement of a patent, trade secret or copyright, Publish2 may: (i) procure for Customer, at no cost to Customer, the right to continue to access the Service; (ii) replace or modify the Service, at no cost to Customer, to make them non-infringing, provided that the same function is performed by the replacement or modified Service; or (iii) if in Publish2’s judgment the right to continue to access the Service cannot be reasonably procured or the Service cannot reasonably be replaced or modified, terminate the Access Rights to use such Service and grant Customer a pro-rated refund on any advance fees paid.
8.2. Data. Customer will defend, indemnify and hold Publish2 harmless from and against any loss, cost and expense that Publish2 incurs in connection with a third party claim that the Data entered into, generated or managed through the use of the Service or Access Rights constitutes defamation or infringes the intellectual property rights, rights of privacy or other rights of any third party.
8.3. Procedure. The obligations of the indemnifying party are expressly conditioned on the following: (i) the indemnified party must promptly notify the indemnifying party in writing of any applicable claim; (ii) the indemnified party must in writing grant the indemnifying party sole control of the defense of any such claim and of all negotiations for its settlement or compromise, provided that no such settlement or compromise shall impose any monetary or other obligations on the indemnified party; and (iii) the indemnified party must reasonably cooperate with the indemnifying party to facilitate the settlement or defense of the claim. If the indemnified party chooses to represent its own interest in any such action, the indemnified party may do so at its own expense, but such representation must not prejudice the indemnifying party’s right to control the defense of the claim and negotiate its settlement or compromise.
9.1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE Service OR ACCESS RIGHTS, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PUBLISH2 BE LIABLE TO Customer FOR ANY LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS OR LOSS OF DATA ARISING OUT OF Customer’S USE OF, OR INABILITY TO USE, THE Service OR ACCESS RIGHTS.
9.2. The limitations described in this Section 9 will not apply to claims arising out of, in connection with or resulting from Customer’s breach of its obligations under Section 2.
10.1. Public Announcements. Publish2 may use Customer’s name, logo, trademarks and/or trade names in press releases, product brochures and financial reports indicating that Customer is a customer of Publish2. All other public statements, releases or other public disclosures by either party describing the subject matter of this Agreement shall require approval of both parties.
10.2. Miscellaneous. All notices, demands, requests or other communications given under this Agreement shall be in writing and be given by personal delivery, certified mail, return receipt requested, or nationally recognized overnight courier service to the addresses set forth above or as may subsequently in writing be requested. This Agreement and disputes arising under this Agreement shall be governed solely by, and construed solely in accordance with, the laws of the Commonwealth of Virginia, excluding conflict of law principles. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the subject matter hereof. This Agreement may not be assigned by a party (whether expressly or by operation of law) without the prior written consent of the other party. If any provision or portion of this Agreement is held to be unenforceable, such provision or portion shall be enforced to the maximum extent permissible consistent with the terms hereof, and the remainder of this Agreement shall continue in full force and effect. This Agreement may not be amended or modified, and no provision may be waived, without a writing signed by the parties. Nothing contained herein shall be construed to constitute the parties as partners, joint venturers, or agents of the other. In the event of a conflict between any terms in the Exhibits and these terms and conditions, these terms and conditions shall control. This Agreement may be executed and delivered (including by facsimile transmission) in two or more counterparts, each of which, when executed and delivered, shall be deemed to be an original but all of which taken together shall constitute one and the same instrument. The expiration of this Agreement shall not terminate those obligations and rights of the parties which are intended to survive. Without limiting the foregoing, the respective rights and obligations of the parties under Sections 4, 5, 6, 7, 8, 9 and 10 shall survive the expiration of this Agreement.
Last Updated: January 1, 2011
