Terms of Use

These PubHive Cloud Terms of Service (“Agreement“) between you (“Customer”) and PubHive Ltd. (“PubHive”), govern Customer’s access to and use of the Service (as defined below). By accessing or using a Service in any manner, Customer agrees to the Agreement. Please refer to Section 15 for definitions of certain capitalized terms.

1. PUBHIVE’S RESPONSIBLITIES 

1.1  Service Subscriptions; Support; Service Levels. Subject to Customer’s compliance with this Agreement, PubHive will make the applicable Services available to Customer during the Subscription Term. PubHive will provide Support for the applicable Services to Customer during the Subscription Term at agreed upon  charge rates. During the Subscription Term PubHive’s standard Service Level Schedule will apply to the availability and uptime of the Service, subject to planned downtime and any unscheduled emergency maintenance. Customer will be entitled to service credits for downtime in accordance with the applicable Service Level Schedule. 

1.2  Security and Protection of Customer Content. PubHive maintains administrative, physical and technical safeguards to protect the security of Customer Content as set forth in PubHive standard operating procedures . PubHive’s security safeguards include, without limitation, employee (and contractor, as applicable) security training, background testing and confidentiality obligations. PubHive’s security controls adhere to generally accepted industry standards and are designed to (a) ensure the security and integrity of Customer Content; (b) detect and protect against threats or hazards to the security or integrity of Customer Content; and (c) prevent unauthorized access to Customer Content. 

1.3 Maintaining Protections and Support Levels. Notwithstanding anything to contrary in this Agreement, or any policy or terms referenced herein via hyperlink (or any update thereto), PubHive may not, during a paid Subscription Term (a) materially diminish the security protections provided by the controls set forth in the company's standard operating procedures, or (b) reduce the level of support purchased by Customer under the applicable Support plan. 

1.4 Trial Services. PubHive may make certain Services, PubHive Applications or specific features and functions available for limited periods for evaluation and non-production purposes (a “Trial”). Some of these Trials may be made available in an online sandbox, a self-contained cloud instance that PubHive pre-configures and pre-populates with data available for the evaluation of Services, PubHive Application(s) or specific features and functionalities. The use of a Trial will be for the term specified by PubHive and may have limited features, functions, indexing capacity, data storage, data security, data continuity, data retention or other limitations as determined by PubHive, and PubHive may change or discontinue the Trial at any point. PubHive reserves the right to monitor Customer’s use of Trial in accordance with Section 2.7. Upon expiration of a specified term for an online sandbox Trial in particular, the sandbox environment and all Customer Content contained in the environment will become inaccessible. Customer understands that only Sections 2, 4, 5, 7, 9, 10.2, 11, 12, and 13 of this Agreement apply to a Trial. Notwithstanding the foregoing, Section 8.2 will apply without exception for the terms of Section 8.1. PubHive is not obligated to provide any maintenance, technical or other support for Trials. 

1.5 Beta Services. PubHive may make available to Customer a preview, limited release, alpha, beta or other pre-release version or feature of the Service or PubHive Applications for non-production use (each, a “Beta Service”). Only Sections 2, 4, 5, 7, 9, 10.2, 11, 12, and 13 of this Agreement apply to the Beta Service. Customer's use of a Beta Service will be for the term specified by PubHive and if no term is specified, then for the earlier of one year from the Beta start date of the Beta Service or when that version of the Beta Service becomes generally available. A Beta Service may have limited features, functions, capacity, data storage, data security, data continuity, data retention or other limitations as determined by PubHive. PubHive reserves the right to monitor Customer’s use of Beta Services in accordance with Section 2.7. PubHive may discontinue the Beta Service and may decide never to make the features and functionality in the Beta Service generally available. Customer acknowledges that Beta Services, by their nature, have not been fully tested and may contain defects or deficiencies which may not be corrected by PubHive, that a Beta Service may undergo significant changes prior to release of the generally available final version. 

1.6 Configuration Services. Subject to Customer’s payment of applicable fees, PubHive will provide the deployment, usage assistance, configuration, and/or training services (if any) set forth in an Order in accordance with PubHive’s standard professional services operating procedures. 

1.7 Service Data. PubHive collects Service Data to support and troubleshoot issues, provide personalized messages/updates, analyze trends and otherwise improve the Service. For more information on the use of the Service Data we collect, see PubHive’s Privacy Policy, incorporated herein by reference. 

2.   CUSTOMER USE OF THE SERVICES 

2.1 Access and Use. Customer may only access and use the Services, PubHive Applications and PubHive Content in accordance with the terms of the Agreement, within the Licensed Capacity set under the Order, and solely for Customer’s Internal Business Purpose. Customer agrees to provide accurate and complete information when Customer registers for and uses any Service and agrees to update all required information promptly. Each person who uses any Service must have a separate username and password. Customer must provide a valid email address for each person that Customer authorizes to use Customer’s account, and Customer may only create one account per email address. Customer must provide any other information reasonably requested by PubHive that is required to set up the account. 

2.2 Purchased Volumes. Each Service is provided to Customer according to the Licensed Capacity, as purchased on the Order. Any PubHive Application licensed to Customer for use with a Service is subject to the same limitations and restrictions that apply to the Service with which such PubHive Application is used. For Subscriptions based on data volume, Customer is entitled to periodically exceed the volume purchased by Customer in accordance with PubHive’s maximum ingestion volume and license usage policy. If Customer’s usage is in excess of the policy allowance, PubHive may work with Customer to reduce usage so that it conforms to the applicable usage limit. If, notwithstanding PubHive’s efforts, Customer is unable or unwilling to abide by the applicable usage limit, Customer will pay any invoice for excess usage in accordance with Section 3. 

2.3 Transmission of Customer Content. Customer is responsible for obtaining and maintaining all telecommunications, broadband and computer equipment and services needed to access and use the Services and for paying all charges related thereto. Customer is the owner and/or controller of all of Customer Content that Customer transmits to the Services. Without limiting PubHive’s security obligations under Section 1.2 above, Customer is responsible for the security of Customer Content when transmitted to and from the Services. Customer acknowledges that any encryption of Customer Content stored (i.e., “encryption at rest”) on the Service is subject to Customer’s separate purchase of encryption features available from PubHive. 

2.4 Client Data Exchange. Customer shall provide commercially reasonable information and assistance to PubHive to enable PubHive to deliver the Services. Upon request from PubHive, Customer shall promptly deliver Customer Content to PubHive in an electronic file format specified and accessible by PubHive. Customer acknowledges that PubHive’s ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.

2.5  Customer Responsibility for Users and Customer Content. Customer is responsible for: (a) Users’ compliance with the Agreement; (b) the accuracy, quality and lawful use of Customer Content and the means by which Customer acquired Customer Content; (c) taking steps to maintain appropriate security and protection of Customer Content (which may include (i) selecting certain service options that PubHive makes available for a Service, such as premium encryption at rest service, and (ii) taking additional measures outside of the Service to the extent the Service offering does not provide the controls that may be required or desired by Customer; and (d) routine archiving and back up of Customer Content. Customer is responsible for securing, protecting and maintaining the confidentiality of Customer’s account username, passwords and access tokens. Neither Customer nor its Users will share Customer passwords or access codes. Customer is responsible for any access and use of the Services via Customer’s accounts and for all activity that occurs in connection with Customer’s accounts, regardless of whether the activities were undertaken by Customer, a User or a third party, except to the extent due to PubHive’s breach of its security obligations under Section 1.2. PubHive will not be liable for any loss or damage arising from Customer’s failure to maintain the security of Customer’s account and. Customer agrees to notify PubHive immediately if Customer believes that an unauthorized third party may be using Customer’s account or if Customer’s account information is lost or stolen. For the avoidance of doubt, nothing in this Section 2.4 will limit PubHive’s security obligations under Section 1.2. However, Customer acknowledges that PubHive Cloud security controls cannot be customized to meet individual Customer requirements, and that Customer is responsible for determining if the PubHive Cloud security controls meet Customer’s needs. Customer is responsible for implementing any additional security controls deemed necessary by the Customer, including any additional security measures not provided as part of the Service. 

2.6 Administrator Access. Customer shall be solely responsible for the acts and omissions of its Administrator Users. PubHive shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.

2.7 Data Restrictions/Regulated Data. Customer may not transmit and/or store HIPAA Data or PCI Data within the Services without prior permissions from PubHive and with identification in an Order. 

2.8 PubHive Applications. PubHive Applications can be activated within the Service, configured, and utilized pursuant to PubHive’s instructions. 

2.9 Third Party Content or Resources. A Service may contain features or functions that enable the interoperation of the Services or PubHive Applications with Third Party Content. To use such features or functions, however, Customer may be required to obtain access separately to such Third Party Content from the respective providers of such Third Party Content, and Customer may be further required to grant PubHive access to Customer accounts with such providers to the extent necessary for PubHive to provide a Service. By requesting or allowing PubHive to enable access to such Third Party Content in connection with the Services, Customer certifies that it has accepted all terms related to the Third Party Content and agrees to use the Third Party Content in accordance with the license or service terms provided by the provider of the Third Party Content. If Customer installs or enables (or directs or otherwise authorizes PubHive to install or enable) Third Party Content for use with any Service, Customer hereby authorizes PubHive to allow the provider of such Third Party Content to access Customer Content as necessary for the interoperation of such Third Party Content with the applicable Services. Customer agrees that PubHive is not responsible or liable for disclosure, modification or deletion of Customer Content resulting from access to Customer Content by such Third Party Content, nor is PubHive liable for any damages or downtime that Customer may incur or any impact on Customer’s experience of the Service, directly or indirectly, as a result of Customer’s use of, and/or reliance upon, any Third Party Content, sites or resources. 

3. PAYMENTS 

3.1 Fees and Taxes. Customer agrees to pay all fees and charges specified in the Orders. Subscription licenses to the Services, any PubHive Applications, and associated fees incurred are non-cancelable and non-refundable. Without limiting any other rights or remedies herein, overdue charges will accrue interest monthly at the rate of 1.5% of the then-outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower. Charges must be paid in advance, either annually or in accordance with any different billing period stated in the Order. All payments are due and payable either within 30 days from the date of PubHive’s invoice or such other period, if any, stated in the Order. All fees and charges quoted are exclusive of applicable taxes and duties, including any applicable sales and use tax. Customer is responsible for paying any taxes assessed based on Customer’s purchases under the Agreement. Any fees and payment terms for PubHive Applications not included in the Order will be as set forth on the access page for such PubHive Applications. 

3.2 Resellers. If Customer acquires a subscription through an authorized reseller of PubHive (“Authorized Reseller”), then, notwithstanding anything to the contrary above, Customer agrees to pay the Authorized Reseller the subscription fees associated with such subscription, and Customer will have no direct payment obligations to PubHive for such fees. However, for the avoidance of doubt, no agreement between Customer and an Authorized Reseller is binding on PubHive or will have any force or effect with respect to the operation, use or provision of the Services. Furthermore, for the avoidance of doubt, the foregoing shall not limit PubHive’s right to directly charge Customer for overages under Section 2.2. 

3.4 Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by PubHive regarding future functionality or features. 

4. PROPRIETARY RIGHTS AND LICENSES 

4.1 PubHive Ownership; Suggestions. As between Customer and PubHive, PubHive owns and reserves all right, title, and interest in and to the Services, the PubHive Software, the PubHive Applications and the PubHive Content, including all intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer grants to PubHive a perpetual, irrevocable, worldwide, nonexclusive, transferable, sublicensable right and license to commercially exploit in any manner PubHive deems fit any Suggestions that Customer provides to PubHive. 

4.2 License to Services, PubHive Applications and PubHive Content. Subject to Customer’s continued compliance with this Agreement, including timely payment of the fees set forth in the applicable Order, PubHive grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following solely during the Subscription Term: 

1. Access and use the Services listed on the Order for Customer’s Internal Business Purposes. 
2. Use any applicable PubHive Applications listed on the Order that Customer has licensed or licensed and asked PubHive to install on Customer’s behalf, solely in connection with Customer’s permitted use of the applicable Services. 
3. Use the PubHive Content, solely in connection with Customer’s permitted use of the Services. 
4. Use the API(s) and other Service components in accordance with descriptions provided in the Documentation. 
5. Copy, modify and use the APIs solely to develop Customer Applications and distribute Customer Applications solely for use with the designated Service or PubHive Application. The foregoing license is subject to the following conditions: (x) PubHive proprietary legends or notices contained in the APIs may not be removed or altered when used in or with the Customer Application; and (y) Customer may not make any statement that Customer Application is certified or that its performance is guaranteed by PubHive. Customer retains title to the Customer Applications, subject to PubHive’s ownership set forth in Section 4.1. If Customer allows end users of Customer Applications to modify or distribute the Customer Applications, Customer will limit such modification or distribution to use with the designated Service or PubHive Application only, and will flow down the conditions in (x) and (y) above to end users of Customer Applications. Customer agrees to assume full responsibility for the performance and distribution of Customer Applications. 

4.3 License Restrictions. The grant of rights to Customer in Section 4.2 is subject to the following restrictions and limitations: Customer may not, and may not permit any third party to: (a) reverse engineer (except to the extent specifically permitted by statutory law), decompile, disassemble or otherwise attempt to discover source code, object code or underlying structures, ideas or algorithms of the Services, the PubHive Software, the PubHive Applications, the PubHive Content or any software, documentation or data related to the Services, the PubHive Software, the PubHive Applications or PubHive Content; (b) modify, translate or create derivative works based on the Services, the PubHive Software, the PubHive Applications or PubHive Content; (c) use the Services, the PubHive Software, the PubHive Applications or PubHive Content for timesharing or service bureau purposes, or for any purpose other than its own internal purposes; (d) access or use any Service in order to monitor its availability, performance, or functionality for competitive purposes; or (e) use the Services, the PubHive Software, the PubHive Applications or PubHive Content other than in accordance with the Agreement and in compliance with all applicable laws and regulations (including but not limited to any applicable privacy and intellectual property laws). Notwithstanding the foregoing, if any PubHive Application is provided to Customer under a separate license agreement that grants Customer more permissive or broader rights with respect to such PubHive Application (e.g., a separate license agreement that is provided to Customer as part of the provisioning process for such PubHive Application), then that separate license agreement, and not the Agreement, will govern Customer’s installation and use of such PubHive Application (but, for clarity, the Agreement will apply to all other PubHive Applications). 

5. CUSTOMER CONTENT 

5.1  Ownership. By submitting or posting Customer Content on the Services, Customer is representing that Customer is the owner of such materials and/or has the necessary rights, licenses, and authorization to ingest and/or distribute it. 

5.2 Copyright.  Customer may access third-party content in use of the Service. Customer may not remove any third party's copyright notices or other identifier, except as allowed by the third-party's license of that content. PubHive is not responsible for any content provided by any third party. 

All Submissions and other data and content made available through the Services must comply with the copyright laws of the United Kingdom, European Union and The United States of America. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. §512, as amended), if you believe in good faith that copyrighted work has been copied, adapted, reproduced or exhibited on the Site or through use of the Services in a manner that constitutes copyright infringement, you may submit written and email notification of the claimed infringing activity to our Designated Person, R. Vaghela, 20-22 Wenlock Road, London, England, N1 7GU. To be effective, the notification of claimed infringement must include the following information: 

A. A physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; 

B. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; 

C. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit PubHive to locate the material; 

D. Information reasonably sufficient to permit PubHive to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; 

E. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and 

F. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. 

Please consult your legal advisor before submitting written notification, as the above-stated requirements may have changed. For further information about the DMCA, please visit the website of the U.S. Copyright Office at: http:// www. copyright.gov/onlinesp/.

In appropriate circumstances, PubHive, at its sole discretion, may suspend or terminate any user’s access to the Services and/or take other action against users where infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing. 

6. TERM AND TERMINATION 

6.1 Term and Renewal. This Agreement will expire upon the expiration or termination of Customer’s account or subscription to a Service. Unless indicated otherwise in the Order, the Subscription Term and the Agreement will automatically renew for: an additional period of time equal to the length of the initial Subscription Term, unless one party notifies the other of its intent not to renew at least thirty (30) days in advance of the expiration of the Subscription Term or then-current renewal period. 

6.2 Termination for Cause. A party may terminate this Agreement for cause if there is any material breach of this Agreement by the other party, unless the breaching party has cured the material default or breach within 30 days from the date of notice. 

6.3 Effect of Termination. Upon expiration or termination of Customer’s account or subscription to a Service:

1. All Customer rights under this Agreement relating to such Service will immediately terminate; 
2. Customer will lose all access to the applicable Service, including access to Customer’s account and Customer Content; 
3. Customer will immediately return or, if instructed by PubHive, destroy all PubHive Content relating to such Service in Customer’s possession or control; and 
4. Any licenses to any PubHive Applications and PubHive Content relating to such Service will terminate.
5. If PubHive terminates this  Agreement due to a breach by Customer, then Customer shall immediately pay to PubHive all amounts then due under this Agreement and to become due during the remaining term of this Agreement, but for such termination. If Customer terminates this Agreement due to a breach by PubHive, then PubHive shall immediately repay to Customer all pre-paid amounts for any unperformed Services scheduled to be delivered after the termination date. 

6.4 Return of Customer Content. Customer Content may be retrieved by Customer and removed from the Services in accordance with the Documentation. Upon request by Customer made before the effective date of termination of a Service subscription, PubHive may assist Customer with the transition of Customer Content for a mutually agreed upon fee. Thirty-one (31) days following expiration or termination of Customer’s account or subscription for a Service, PubHive will have no obligation to maintain or provide any of Customer Content relating to such Service, and Customer hereby authorizes PubHive thereafter to delete all Customer Content relating to such Service that is in its possession or under its control, unless PubHive is otherwise legally prohibited from doing so. 

6.5 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 6.2 (Termination for Cause), PubHive will refund Customer any prepaid subscription fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by PubHive in accordance with Section 6.2, Customer will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve Customer of its obligation to pay any fees payable to PubHive for the period prior to the effective date of termination. 

6.6 Suspension of Service for Late Payment. If any charge owing by Customer is thirty (30) days or more overdue, PubHive may, without limiting its other rights and remedies, suspend the applicable Services until such amounts are paid in full, provided that, PubHive will give Customer at least ten (10) days’ prior notice that its payment is overdue before suspending services to Customer. For the avoidance of doubt suspensions of applicable Services will have no impact on the then-current Subscription Term, its associated payments or the relevant duration of the Subscription. 

6.7 Suspension of Service for Ongoing Harm.  PubHive reserves the right to suspend delivery of Services if PubHive reasonably concludes that Customer user’s use of Services is causing immediate and ongoing harm to PubHive or others. In the extraordinary case that PubHive must suspend delivery of the Services, PubHive shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. PubHive shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Services.

7. CONFIDENTIALITY 

7.1 Confidential Information. Unless otherwise provided in writing, the Receiving Party agrees to: (i) protect the Disclosing Party’s Confidential Information using the same degree of care (but in no event less than reasonable care) that it uses to protect its own Confidential Information of a similar nature; (ii) limit use of Disclosing Party’s Confidential Information for purposes consistent with this Agreement, and (iii) limit access to Disclosing Party’s Confidential Information to its employees, contractors and agents or those of its Affiliates who have a bona fide need to access such Confidential Information for purposes consistent with this Agreement and who are subject to confidentiality obligations no less stringent than those herein. 

7.2     Compelled Disclosure of Confidential Information. Notwithstanding the foregoing terms of Section 7.1, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law enforcement agencies or regulators to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information. 

8. WARRANTIES AND DISCLAIMER OF WARRANTIES 

8.1  PubHive’s Warranties. PubHive warrants that: (a) it has the legal power and authority to enter into this Agreement; (b) during the Subscription Term PubHive will not materially decrease the overall functionality of the Services; and (c) during the Subscription Term the Services will perform materially in accordance with the applicable Documentation. For any breach of the warranties in (b) and (c), Customer’s sole and exclusive remedies are those described in the Termination and Refund of Payment upon Termination sections above. 

8.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN 8.1 ABOVE, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, PUBHIVE DISCLAIMS ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS WITH RESPECT TO THE SERVICES, INCLUDING ANY REPRESENTATIONS OR WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. TO THE EXTENT SUCH A LAW APPLIES TO CUSTOMER, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS. 

9. LIMITATION OF LIABILITY 

IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ANY OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.  THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER OR CUSTOMER’S AFFILIATE’S OBLIGATIONS UNDER THE “PAYMENTS” SECTION ABOVE, AND WILL NOT BE DEEMED TO LIMIT CUSTOMER’S RIGHTS TO SERVICE LEVEL CREDITS UNDER PUBHIVE’S SERVICE LEVEL SCHEDULE. 

IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER THE ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY’S OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.  THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. TO THE EXTENT SUCH A LAW APPLIES TO CUSTOMER, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS. 

10. INDEMNITY 

10.1 Indemnification by PubHive. PubHive will defend Customer, and pay all damages (including attorneys’ fees and costs) finally awarded against Customer, or that are agreed to in a court-approved settlement, to the extent a claim, demand, suit or proceeding is made or brought against Customer by a third party (including those brought by the government) alleging that the PubHive Software infringes or misappropriates such third party’s patent, copyright, trademark or trade secret (a “Customer Claim”), provided that Customer: (i) provides PubHive with prompt written notice of the Customer Claim; (ii) gives PubHive sole control of the defense and settlement of the Customer Claim (except that PubHive may not settle any Customer Claim that requires any action or forbearance on Customer’s part without Customer’s prior consent, which Customer will not unreasonably withhold or delay); and (iii) gives PubHive all reasonable assistance. PubHive will have no obligation under the foregoing provision to the extent a Customer Claim arises from Customer’s breach of the Agreement, Customer Content, Third Party Content, or the combination of the PubHive Software with: (a) Customer Content; (b) Third Party Content; (c) any software other than the PubHive Software; or (d) any hardware or equipment. PubHive may in its sole discretion and at no cost to Customer: (1) modify any Service and/or PubHive Software so that it no longer infringes or misappropriates a third party right, (2) obtain a license for Customer’s continued use of the PubHive Software, in accordance with the Agreement, or (3) terminate this Agreement and refund Customer any prepaid fees covering the unexpired Subscription Term. 

10.2 Customer Indemnity of PubHive. Unless expressly prohibited by applicable law, Customer will defend, and pay all damages (including attorneys’ fees and costs) finally awarded against PubHive, or that are agreed to in a court-approved settlement, to the extent a claim, demand, suit or proceeding is made or brought against PubHive or its Affiliates by a third party (including those brought by a government entity) that: (i) alleges that Customer Content, Customer Applications or Customer’s use of any Service infringes or misappropriates such third party’s patent, copyright, trademark or trade secret, or violates another right of a third party; (ii) arises out of the activities of Users; or (iii) alleges that Customer Content, Customer Applications or Customer use of any Service violates applicable law or regulation (each, a “PubHive Claim”), provided that PubHive: (a) gives Customer prompt written notice of the PubHive Claim; (b) gives Customer sole control of the defense and settlement of the PubHive Claim except that Customer may not settle any PubHive Claim that requires any action or forbearance on PubHive’s part without PubHive’s prior consent (that PubHive will not unreasonably withhold or delay); and (c) PubHive gives Customer all reasonable assistance. 

11. IMPORT & EXPORT CONTROL 

The Services, the PubHive Software, and/or PubHive Content, or any feature or part thereof, may not be available for use in all jurisdictions, and PubHive makes no representation that the Services, the PubHive Software, and/or PubHive Content, or any feature or part thereof is appropriate or available for use in any particular jurisdiction. To the extent Customer chooses to access and use any Service, the PubHive Software, and/or PubHive Content, Customer does so at Customer’s own initiative and at Customer’s own risk, and Customer is responsible for complying with any applicable laws, rules, and regulations with respect to such access and use. 

Customer’s and its Users’ use of the Services, the PubHive Software, and/or PubHive Content is subject to the customs and export control laws and regulations of the United Kingdom and may also be subject to the customs and export laws and regulations of other countries. Customer and its Users will fully comply with all applicable customs and export control laws and regulations of the United Kingdom and any other country where Customer or its Users use the Services, the PubHive Software, and/or PubHive Content. Customer certifies that Customer and its Users are not on any U.K. Government Lists of prohibited persons.  Customer further certifies that Customer or its Users will not export, re-export, ship, transfer or otherwise use the Services, the PubHive Software, and/or PubHive Content in any country subject to an embargo or other sanction by the United Kingdom, and that Customer or its Users will not use the Services, the PubHive Software, and/or the PubHive Content for any purpose prohibited by U.K. laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. Customer or its Users are prohibited from sending to Customer’s account any data or software that cannot be exported without prior written government authorization, including but not limited to, certain types of encryption software. These assurances and commitments will survive termination of this Agreement. 

12. GENERAL TERMS 

12.1 Anti-Corruption. PubHive uses diligent efforts to implement and maintain programs for its compliance with anti-corruption and anti-bribery laws. Each party agrees that Customer it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employees or agents of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party, in the case of notices to PubHive, to our Legal Department at info[at]pubhive.com, and in the case of Customer to the main contact address provided by Customer to PubHive. 

12.2 Governing Law; Venue. For all Customers, this Agreement will be governed by the laws of England and Wales. For such Customers, any legal action or proceeding arising under this Agreement will be referred to and finally resolved exclusively by arbitration in London by a panel of one (1) arbitrator in accordance with the Arbitration Rules of the London Court of International Arbitration ("LCIA Rules") for the time being in force, which rules are deemed to be incorporated by reference to this clause. English will be the official language for the arbitration. The arbitrator will be appointed jointly by both parties and if the parties cannot agree on the identity of the arbitrator within thirty (30) days of a request for arbitration, the arbitrator will be selected in accordance with the LCIA Rules. The award rendered by the arbitrator will be final and binding on the parties and may include costs, including a reasonable allowance for attorney/solicitors' fees, and judgment thereon may be entered in any court having competent jurisdiction. Notwithstanding anything to the contrary in this Section, neither party will be required to arbitrate any dispute relating to actual or threatened (i) unauthorized disclosure of Confidential Information or (ii) violation of PubHive’s proprietary rights. Either party will be entitled to receive injunctive, preliminary or other equitable relief in a court of competent jurisdiction, including court costs and fees of attorneys and other professionals, to remedy any actual or threatened violation of its rights. Neither the Uniform Computer Information Transactions Act (“UCITA”), nor the United Nations Convention for the International Sale of Goods will apply to this Agreement. 

12.3 Independent Contractors; No Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The third-party licensors of PubHive Content are express third-party beneficiaries of the Agreement. There are no other third-party beneficiaries of this Agreement. Customer represents that it has the authority to bind itself and its Affiliates to the terms and conditions herein. 

12.4 Amendment; Severability. This Agreement may only be amended by a written amendment signed by both parties, unless otherwise provided herein. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, invalid or unenforceable, the provision will be modified by the court and interpreted so as best to accomplish the objectives and intent of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the remainder of the Agreement will remain in full force and effect. 

12.5 Assignment. Customer may not assign, delegate or sublicense any of Customer’s rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of PubHive. 

12.6 No waiver. The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision or of any other right or provision. All waivers must be in a signed writing to be effective. 

12.7 Force Majeure. PubHive and its Affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond PubHive’s or its Affiliates’, officers’, directors’, employees’, agents’, partners’, or licensors’ reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockades, embargoes, riots, acts or orders of government, acts of terrorism, or war. 

12.8  Entire Agreement. This Agreement, which incorporates the PubHive Privacy Policy, the PubHive Service Level Schedule, PubHive standard operating procedures, the Documentation and the Order, as well as the terms and documents referred to in each, constitutes the entire agreement between Customer and PubHive and supersedes any prior agreements between Customer and PubHive concerning the Services, the PubHive Software, and/or PubHive Content (including, but not limited to, any prior versions of the Agreement) or any preprinted terms on a Customer’s Order. This Agreement does not amend any other separate agreement Customer may have with PubHive for other software products or services that are not Services. 

12.9 Notices to Customers and Consent to Electronic Communications. Customer consents to receiving electronic communications and notifications from PubHive in connection with the Services, the linked policies and the Agreement. Customer agrees that any such communication will satisfy any applicable legal communication requirements, including that such communications be in writing. PubHive may provide Customer with notices regarding the Services, including changes to this Agreement and the linked policies, by email to the email address of Customer’s administrator (and/or other alternate email address associated with Customer Account if provided), or by regular mail. It is Customer's responsibility to keep Customer's email address current. Customer will be deemed to have received any email sent to the email address then associated with Customer’s account when PubHive sends the email. In the event Customer does not wish to accept any material change to the Services, the linked policies or to this Agreement, Customer will have the right, as its sole remedy, to terminate this Agreement within thirty (30) days of PubHive’s notice of such change, and, if Customer exercises such termination right, PubHive will provide a pro rata refund to Customer equal to the amount fees pre-paid by Customer for the Service that corresponds to the period after the date of such termination for the Term. 

12.10 Survival. The following sections will survive the termination or expiration of the Agreement: 2.2, 2.3, 2.4, 4.1, 5, 6.3, 6.4, 6.5 and 7-12. 

13. DEFINITIONS 

13.1   “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

13.2 “API” or “Application Programming Interface” means a set of programming instructions, and standards for accessing a Service that PubHive provides to Customer in the Documentation and any other materials identified and provided by PubHive for and with a Service that are designed to enable the creation of Applications or otherwise support interoperability between a Service and Customer’s systems or environment. 

13.3 “Application” means any suite, configuration file, add-on, technical add-on, example module, command, function or application that extends the features or functionality of the applicable Service or the underlying PubHive Software.