Publica Marketplace Platform Agreement

Last Updated: 04/01/2021

BY CHECKING THE BOX ACKNOWLEDGING AGREEMENT TO THESE TERMS OR OTHERWISE REGISTERING FOR OR USING THE PLATFORM, SELLER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS SET FORTH IN THIS PUBLICA MARKETPLACE PLATFORM AGREEMENT.

This Publica Marketplace Platform Agreement, including any terms and policies incorporated herein by reference (collectively the “Agreement”) sets forth the terms under which QueryLoop, Inc., d/b/a Publica ("Publica") makes the Publica Marketplace Platform (the “Platform”) available to you and the company or organization on behalf of whom you are registering (“Seller”). The Platform will enable Seller to create and customize an online store or library (the “Seller Store” ) whereby Seller will be able to make certain digital publications and other content provided by Seller (the “Seller Content”) and/or certain digital publications or other content which Publica makes available to Seller through the Platform (the “Marketplace Content”) available for sale or other distribution to end users through the Platform (“End Users”). Together, the Seller Content and the Marketplace Content offered through the Seller Store is referred to as the “Store Content.” By registering or using Seller’s account, you represent and warrant that you are authorized to accept this Agreement and act on behalf of the Seller. This Agreement supersedes and replaces all prior agreements and terms that relate to Seller’s use of the Platform, including, as applicable, the Unlimited Service Sale Agreement, the Sales & Revenue Share Agreement, and the SaaS and Sales Agreement and Terms of Service.

Publica may change the terms of this Agreement any time in its sole discretion upon thirty (30) days’ notice to Seller (or such different notice period as specific in the notice) (the “Notice Period”). The changes will be effective at the end of the Notice Period, and Seller’s continued use of the Platform after the end of the Notice Period, including offering any Products for sale on the Platform, constitutes Seller’s acceptance of such changes. If Seller does not agree to any changes, Seller must discontinue all use of the Platform and remove all of its Seller Content prior to the end of the Notice Period.

  1. Subscription Plans; Cancellation. Use of the Platform is subject to the terms of this Agreement as well as the features, limitations, and other requirements of the applicable subscription plan (or plans) that Seller has selected (the “Subscription Plan”). The features, limitations, and requirements for each Subscription Plan, including any applicable Subscription Fees (as defined below), are as set forth on the Publica.la website (the “Site”) at https://publica.la/en/plans. Subscription Plans that require subscription fees have subscription terms that are monthly, annually, or such other terms as may be offered by Publica and selected by Seller (the “Subscription Term”). Seller may change or cancel its Subscription Plan at any time by emailing Publica at support@publica.la. However, no refunds of any Subscription Fees will be provided in connection with any change or cancellation of the Subscription Term, except as otherwise expressly provided in this Agreement or as required by applicable law. The Subscription Term will automatically renew at the end of each term (each a “Renewal Term”) unless Seller cancels prior the end of the previous term by emailing Publica at support@publica.la (or Publica terminates Seller in accordance with Section 12 below). It is solely Seller’s responsibility to cancel the Subscription before the end of the current Subscription Term, in order to stop the Subscription Term from being renewed. The features, limitations, requirements of any Subscription Plan may be changed by Publica at any time upon written notice, provided that such changes will not go into effect until the end of the Subscription Term (if applicable).
  2. Free Trials. From time to time, we may offer free trials or other promotional subscriptions (a “Trial Subscription”) that will automatically convert into a paid subscription after the end of a certain period of time (the “Promotion Period"). SELLER ACKNOWLEDGES THAT SELLER MUST CANCEL THE TRIAL SUBSCRIPTION BY EMAILING PUBLICA AT SUPPORT@PUBLICA.LA BEFORE THE END OF THE PROMOTION PERIOD IN ORDER TO AVOID CONVERTING TO A STANDARD SUBSCRIPTION AND BEING CHARGED A SUBSCRIPTION FEE, AND SELLER AUTHORIZES PUBLICA TO CHARGE THE PAYMENT METHOD PROVIDED IN CONNECTION WITH THE TRIAL SUBSCRIPTION FOR ALL SUBSCRIPTION FEES AND OTHER AMOUNTS AS SET FORM IN SECTION 3.2 BELOW IF SELLER HAS NOT CANCELLED AS SET FORTH ABOVE PRIOR TO THE END OF THE PROMOTION PERIOD.
  3. Seller’s Obligations.
    1. Registration. To activate the Seller Store, Seller must create an account (the “Account”) and provide all information requested by Publica during Account activation, and the Seller Store must be accepted by Publica (which acceptance is at the sole discretion of Publica). Seller must provide Publica with accurate, complete and updated information, and will promptly update Account information in the event of any changes to such information. Failure to do so is a breach of this Agreement and may result in termination of Seller’s Account and rights to use the Platform. Seller will maintain the security and confidentiality of its account information, including the passwords used to access its Account, and is responsible for all activities performed in the Platform with its Account information.
    2. Fees; Automatic Renewal. Certain Subscription Plans may require payment of a one-time set up fee (the “Set-Up Fee”) and/or a subscription fee (the “Subscription Fee”), as set forth on our Site at https://publica.la/en/plans. In addition, Publica reserves the right to charge the following transaction fees: (a) a transaction fee of $0.43 on each End User transaction in the event that the Revenue Share (as defined below) on such transaction is not sufficient to cover the fees charged by Publica’s payment processor or as otherwise specified in the applicable Subscription Plan; and (b) a transaction fee of $1.00 if Seller Content is provided to End Users free of charge (including through the use of a coupon code) (collectively the “Transaction Fees”). Any Set-Up Fees, Subscriptions Fees, and Transaction Fees will be referred to collectively as the “Fees.”

      Set-Up fees will be charged to credit card, debit card, or other payment method (“Payment Method”) provided at the time of set up. If Seller’s Subscription Plan requires payment of a Subscription Fee, Seller: (a) agrees to pay the applicable Subscription Fees in advance at the initial term of the Subscription and on the date of each renewal (including any applicable sales and use taxes, duties or other governmental taxes or fees), and to reimburse Publica for all collection costs and interest for any overdue amounts; (b) will provide a Payment Method at the time of subscribing to such Subscription Plan, and will update such information as necessary to maintain a valid Payment Method on file at all times; and (c) authorizes Publica or its designated payment processors to store your Payment Method and other related information and automatically charge your Payment Method for all amounts due under this Agreement.

      AUTORENEWAL: SELLER UNDERSTANDS AND AGREES THAT ITS SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR THE SAME DURATION, AND THAT SELLER’S PAYMENT METHOD WILL AUTOMATICALLY BE CHARGED FOR THE APPLICABLE SUBSCRIPTION FEE FOR THE RENEWAL TERM (WITHOUT FURTHER AUTHORIZATION AND WITHOUT FURTHER NOTICE EXCEPT AS REQUIRED BY LAW), UNLESS SELLER CANCELS ITS SUBSCRIPTION IN WRITING PRIOR TO THE END OF THE PREVIOUS TERM BY EMAILING PUBLICA AT SUPPORT@PUBLICA.LA (OR PUBLICA CANCELS UPON WRITTEN NOTICE). SEE SECTION 1 FOR MORE INFORMATION ON CANCELLATION OF SUBSCRIPTIONS. YOU ACKNOWLEDGE THAT THE AMOUNT OF THE RECURRING CHARGE MAY CHANGE IF THE APPLICABLE SUBSCRIPTION FEES INCREASES.

      In the event that Publica is unable to charge the Subscription Fee or other amounts due to Seller’s Payment Method on file, then Seller will promptly provide a replacement Payment Method or directly pay Publica for all amounts due upon demand from Publica, and Publica may at any time, at its option, deduct any Subscription Fees owed from any Sales Proceeds (as defined below) that is due to Seller. If Subscription Fees remain unpaid, then Publica reserves the right to suspend Seller’s Account, and block access to the Platform (including End User access to the Seller Store), if payment isn’t made within thirty (30) days of receiving notice from Seller. Publica may terminate Seller at any time upon written notice if Subscription Fees remain unpaid for more than ninety (90) days. Seller understands that Subscription Fees will continue to accrue during any period of suspension.

      Subscription Fees are subject to change at any time upon notice by Publica, provided that the new Subscription Fees will not commence until the end of the applicable Subscription Term. If the new Subscription Fees are not acceptable, then Seller must provide notice of nonrenewal prior to the effective date of the next Renewal Term, and failure to do so will constitute acceptance of the new Subscription Fees for such Renewal Term.

      All Fees and other charges are nonrefundable and there are no refunds or credits for any partially used periods except (i) as expressly set forth in this Agreement, (ii) as otherwise required by applicable law and (iii) at Publica’s sole and absolute discretion. All Fees are in US Dollars.

    3. Publica Revenue Share. Publica will be entitled to a revenue share (the “Publica Revenue Share”) on all sales or subscriptions of Store Content (whether Seller Content or Marketplace Content) made through the Seller Store. For Seller Content, the Publica Revenue Share is based on the percentage of Sales Proceeds specified in the applicable Subscription Plan. “Sales Proceeds” means all amounts collected from End Users with respect to sales or subscriptions of Store Content or otherwise earned through the Seller Store but excluding sales and similar pass-through taxes collected from End Users. For Marketplace Content, the Publica Revenue Share is fifteen percent (15%) of the suggested sales price (“SSP”) established by the provider of the Marketplace Content (the “Content Provider”), which SSP is set forth in dashboard section of Seller’s Storefront (the “Dashboard”), regardless of Subscription Plan.
    4. Compliance with Platform Policies. Seller agrees that Seller and the Seller Store will at all times comply with the Publica’s Platform Policies as may be from time to time updated by Publica (the “Platform Policies”), which are incorporated into this Agreement by this reference. Publica’s current Platform Policies are located here https://app.publica.la/platform/privacy-policy. Any failure to abide by the Platform Policies and other terms of this Agreement is a breach of this Agreement and may result in termination of Seller’s Account and rights to use the Platform and subject Seller to other penalties and legal liability.
    5. Seller Content. If a Seller Store includes Seller Content, then once Seller’s Account has been approved by Publica, Seller will (a) ensure that all Seller Content complies in all respects with the Platform Polices and the other terms of this Agreement, including that all Seller Content must comply with all applicable laws, rules, and regulations (“Applicable Law”) and must not infringe upon or violate the rights of any third party; (b) upload the Seller Content in the formats authorized by Publica; (c) be solely responsible for the Seller Content and for maintaining and updating the Seller Content; (d) establishing prices and subscription fees for the Seller Content ; and (d) promptly remove any Seller Content that it becomes aware infringes or violate any third party rights or violates Applicable Law or the Platform Policies. Publica does not routinely review or approve the Seller Content, but Publica reserves the right to remove or suspend access to any Seller Content for any reason in Publica’s sole discretion. Seller is solely responsible for maintaining backup copies of all Seller Content and of all information provided to Seller by Publica, and Publica will have no responsibility or liability of any kind to Seller for any loss of any Seller Content or information.
    6. Permits; Taxes. Seller will, at its own expense, obtain all permits and licenses required to operate its business in accordance with Applicable Law, and will pay and discharge all applicable taxes and assessments which may be due for selling or offering of its Store Content on or through the Platform, including any taxes and assessments due to any non-U.S. taxing authority, except that Publica will collect and remit sales tax on sales made through the Platform.
    7. End User Agreement. Seller will present an End User agreement for the Seller Store in its name, in the form provided by Publica, unless Seller obtains written approval to use another form of End User agreement.
    8. Customer Service. Seller is responsible for, and will provide, all first level support to End Users and for resolving all customer service issues arising from or relating to the Store Content and Seller's promotion and operation of the Seller Store sale. If Seller fails to timely respond to customer service issues, or Publica requests related to the same, within any time frames or other requirements identified in the Platform Policies, Publica may suspend Seller's Account or take other action it deems necessary to resolve the Customer service issue.
    9. Refunds. Seller is responsible for refunds and exchanges and for determining and communicating to Publica when an End User is due a cash refund (e.g., via a refund to the End User’s form of original payment). Seller will notify Publica when such refunds are due and include all related information needed to issue such refund and as otherwise requested by Publica or its third-party service provider(s). Notwithstanding the foregoing, Publica may issue a refund to an End User at any time in its sole discretion. If Seller properly notifies Publica to initiate the refund, Publica or its third-party service provider(s) will provide the cash refund to the End User via the End User’s original payment method (e.g., credit or debit card) if possible. Publica may set-off such refunded amounts against any reserve it maintains for returns, deduct such amounts from any future payments made by Publica to Seller, or invoice Seller for such amounts; and Seller will pay Publica the full amount of any such invoice within 15 days of the date of the invoice.
    10. Insurance. At the request of Publica, Seller will obtain and maintain throughout the term of this Agreement, a policy or policies of Commercial General Liability insurance (including product and completed operations, personal and advertising injury and contractual liability coverages) covering Seller written on an occurrence form with minimum limits of $2,000,000 per occurrence/$4,000,000 aggregate (which limits may be satisfied by the combination of underlying and excess umbrella policies). Each insurance policy required by this Agreement will be underwritten by insurers rated “A-” or better by A.M. Best Company. Seller will provide Certificates of Insurance naming Publica as “Additional Insured” with respect to General Liability policies and will cause a Broad Form Vendor’s Endorsement (ISO Form CG2015) in favor of Publica to be attached to such policies. Seller will provide such Certificates of Insurance upon Publica’s request and will provide updated Certificates of Insurance when coverage is renewed or materially changed and as may be requested from time to time by Publica. Policy limits will not be reduced, terms changed, or policy canceled upon less than 30 days prior written notice to Publica. Seller’s insurance will be primary with respect to all Seller obligations under this Agreement. Publica makes no representation, by requiring insurance herein, that the types, forms, or minimum acceptable limits of insurance stated in the Agreement are adequate to protect the interests of Seller. Nor will such required insurance be deemed as the designated amount of or limitation on liability. Neither the approval, disapproval or failure to act by Publica regarding any insurance supplied, nor the bankruptcy, insolvency or denial of liability by any insurance company, will relieve Seller of full responsibility or liability for damages.
  4. Publica Obligations.
    1. Hosting and Order Processing; Sales Proceeds. Publica will host the Seller Store, including the Store Content, on the Platform, subject to the terms, conditions, and limitation set forth in this Agreement (including the Platform Policies) and in accordance with the terms of the Service Level Agreement set forth in Section 4.4 below (the “Service Level Agreement”). End Users will subscribe to or otherwise order Store Content using the Platform checkout system (each an “Order”). For each Order submitted through the Platform, Publica or its third-party service providers will process the transaction and collect the Sales Proceeds on behalf of the Seller. The amount of the Sales Proceeds collected is based on the fees Seller specifies in the Seller Store. Publica will provide End Users with access to the Store Content in accordance with the plans offered by Seller through the Platform and purchased by End User. All transactions with End User are solely between Seller and the End User, and Seller will be the seller of record. Seller hereby authorizes Publica and its third-party service provider(s) to act on behalf of Seller to accept payment from Customers for the Store Content. Publica reserves the right to refuse to process any Order in its sole discretion.
    2. Support. Publica will provide second level technical support to Seller via electronic mail, or such other methods as specified in the applicable Subscription Plan, on weekdays during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of Federal Holidays (“Support Hours”). Users may initiate a Helpdesk ticket during Support Hours by emailing at any time support@publica.la. Company will endeavor to respond to all Helpdesk tickets within one (1) business day.
    3. Service Level Agreement. The Platform will be available with an uptime of 99.9%, measured monthly, provided that downtime excludes (a) holidays and weekends, (b) scheduled maintenance, (c) any periods during which Seller requests maintenance, and (d) and any downtime resulting from outages of third-party connections or utilities or other reasons beyond Publica's control (collectively the “Downtime Exclusions”). SELLER’S SOLE AND EXCLUSIVE REMEDY, AND PUBLICA’S ENTIRE LIABILITY, IN CONNECTION WITH PLATFORM AVAILABILITY SHALL BE THAT FOR EACH PERIOD OF DOWNTIME (NOT INCLUDING ANY DOWNTIME EXCLUSIONS) LASTING LONGER THAN TWO HOURS, PUBLICA WILL CREDIT SELLER 5% OF THE SUBSCRIPTION FEES FOR EACH SUCH PERIOD OF 2 OR MORE CONSECUTIVE HOURS OF DOWNTIME; PROVIDED THAT NO MORE THAN ONE SUCH CREDIT WILL ACCRUE PER DAY. Downtime shall begin to accrue as soon as Seller notifies Publica that downtime is taking place, and continues until the availability of the Platform is restored. In order to receive downtime credit, Seller must notify Publica in writing, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) prorated week of Subscription Fees in any one (1) calendar month in any event. Publica will only apply a credit to the month in which the incident occurred. Publica’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Publica to provide adequate service levels under this Agreement.
    4. Seller Proceeds; Payments. For Seller Content, the amount due to Seller (the “Seller Proceeds”) is the Sales Proceeds from the sale of Seller Content, less the Publica Revenue Share and any applicable Transaction Fees. For Marketplace Content, the Seller Proceeds is calculated differently, as a portion of the Sales Proceeds is paid to the Content Provider (the “Content Provider Share”) (which varies depending on the particular item of Marketplace Content sold). The Seller Proceeds for Marketplace Content is the amount designated as “earnings” in the Dashboard for each item of Marketplace Content sold through the Seller Store. This earnings amount takes into account the deduction of the Publica Revenue Share (which will be retained by Publica) as well as the Content Provider Share (which Publica is responsible for paying to the Content Provider). Publica will pay Seller the Seller Proceeds on a monthly basis, provided that the Seller Proceeds due to Seller total equal at least $100. Payment will be made by direct deposit to the Seller bank account designated in the Dashboard. Any fees incurred by Seller in connection with such payment are Seller’s sole responsibility. If the Seller Proceeds are less than $100, Publica may, at its option, wait until the Sales Proceeds due to Seller equal at least $100 to make such payment. All Seller Proceeds will be made in U.S. dollars and all other amounts set forth this in the Agreement, are identified (and the Parties will pay) in U.S. Dollars. If Seller’s account balance in any month is negative (i.e., Seller owes Publica money), Publica may set-off any future payments to Seller by that negative balance amount, or invoice Seller for that amount; Seller will pay Publica the full amount of any invoice within 15 days of the invoice date. In addition, (a) Publica may withhold Seller Proceeds or return funds to an End User regarding an investigation of any claim or any suspected or alleged wrongful conduct by Seller or any violation of the Agreement (including Platform Policies), and Publica will not be liable to Seller for any such amounts, (b) any sums owed or payable to Seller by Publica will be subject to any claims and defenses made by Publica or End Users against Seller, and Publica may set off and deduct against such sums all present and future amounts owed by Seller to Publica arising under this Agreement, including all expenses, costs and damages incurred by Publica because of Seller’s (or its personnel’s) acts, omissions or negligence, and (c) Publica may at any time create and hold a reserve from amounts owed to Seller against anticipated returns or other liabilities owing by Seller to Publica, including any liabilities regarding returns, or future warranty and indemnity obligations. Seller will provide accurate banking information to Publica. Publica is not responsible for any delays in payment to Seller resulting from inaccurate banking or payment information entered into the Dashboard. Any claims regarding the accuracy or sufficiency regarding the payment of any Seller Proceeds must be raised within six (6) months of the date the payment is made to Seller.
    5. Payment Suspension. Publica may suspend Seller’s Account immediately upon notice if (a) Seller is not complying with the Platform Policies, (b) Publica believes that Seller’s actions or performance under the Agreement (including the Platform Policies) may result in End User disputes, chargebacks, or other claims or (c) Seller is otherwise in breach of the Agreement. In such event, Publica may suspend the payment of Seller Proceeds attributable to Seller’s Account to allow for the investigation of any End User claims and for the settlement of all amounts owed to Publica. If Publica believes that Seller’s actions or performance under the Agreement (including the Platform Policies) may result in End User disputes, chargebacks or other claims, then Publica may, in its sole discretion, delay or withhold any payment of Seller Proceeds due until the completion of any investigation(s) regarding Seller performance.
    6. Marketplace Content. If Seller decides to offer Marketplace Content via the Seller Store, then Publica will make such Marketplace Content selected by Seller available to End Users through the Seller Store for as long as such Marketplace Content is available on the Platform. Such Marketplace Content will be made available to End Users on the license terms specified by Publica and/or its content providers. Seller understands that the Marketplace Content includes third party content, and that the availability of such Marketplace Content may expire prior to the end of the Term.
  5. Intellectual Property.
    1. Use Rights. Subject to Seller’s compliance with the terms of this Agreement, Publica grants Seller a limited, non-exclusive, revocable, non-transferrable license to (a) install, use and reproduce Publica’s software, APIs and related documentation provided by Publica (collectively, “Publica Software”) solely in connection with the creation, operation and maintenance of the Seller Store on the Platform; and (b) access and use the Platform and the Publica Software to sell and otherwise distribute Store Content to End Users through the Platform. Seller’s use of any Publica Software is subject to any additional terms and conditions or limitations set forth in any documentation that Publica makes available to Seller. Such limitations may include a limitation or throttle on the number of calls that Seller may make to the API or similar usage restrictions. Publica may utilize technical measures to prevent over usage or stop usage of the API by Seller if any usage limitations are exceeded. Seller may not do any of the following: (i) adapt, modify, translate, or make a derivative work of the Platform, the Publica Software, or any other content, materials, documentation, or other intellectual property of Publica or its licensors (collectively the “Publica IP”); (ii) copy or permit automated downloading of the whole or any part of the Publica IP, except such limited copying as may be permitted under applicable US copyright law; (iii) reproduce, transfer, publish, distribute, commercially use or display, broadcast, telecommunicate, sell, or provide a third party access to all or any part of the Publica IP, except for providing End Users with access to the Seller Store in accordance with the terms of this Agreement; (iv) use all or any part of the Publica to train models, develop semantic or neural network software, or for any purposes other than those expressly contemplated under this Agreement.
    2. Publica Ownership. Publica and/or its service providers and licensors are the owners of all rights in and to the Platform, the Publica Software, the Marketplace Content, and the other Publica IP, including all intellectual property rights therein, subject only to the limited license granted to Seller in this Agreement. All rights not expressly granted to Seller in this Agreement are expressly reserved by Publica and its service providers or licensors.
    3. Seller Ownership. As between the Parties, Seller owns all right, title and interest in and to the Seller Content, Seller’s trademarks and service marks of Seller (the “Seller Marks”), and any images, photos, graphics, text, videos, descriptions, information, data or other content or materials of Seller that Seller incorporates into the Seller Store (the “Store Content”), subject only to the limited license granted to Publica in this Agreement. Seller grants Publica a non-exclusive, royalty-free, transferrable, sublicenseable, worldwide right to reproduce, distribute, publicly perform, publicly display, modify, create derivative works from, and otherwise use and exploit Seller Content, the Seller Marks, and the Store Content (collectively the “Seller IP”) in order to operate the Platform and fulfill its obligations and rights under this Agreement..
    4. Feedback. Any suggestions, comments, ideas, improvements or other feedback or materials Seller provides to Publica or its affiliates regarding Publica, the Platform, the Publica Software or other subject matter of this Agreement (including with respect to modifications, enhancements, improvements and other changes to the foregoing) (“Feedback”) is voluntary and nonconfidential and Seller hereby grants to Publica a world-wide, royalty free, irrevocable, transferrable, perpetual license to use (and authorize others to use) any Feedback without restriction and without any obligations of any kind to Seller.
  6. Confidentiality.
    1. Obligation. To the maximum extent permitted by Applicable Law, each party will: (a) treat as confidential, and protect and preserve the confidentiality of, all Confidential Information of the other party (as defined below); (b) use such Confidential Information solely for the purposes of this Agreement and in compliance with this Agreement; (c) limit disclosure of such Confidential Information to those personnel, consultants, and vendors to whom disclosure is necessary for the purposes of this Agreement, provided such personnel have agreed in writing to maintain the confidentiality thereof; ; and, (f) immediately notify the other party upon discovery of any loss or unauthorized disclosure of any such Confidential Information “Confidential Information” means all nonpublic information about a party that is provided or disclosed to the other party or which the other party learned by observation or otherwise in connection with this Agreement, which is either marked or identified as Confidential or which by its nature the parties should recognize as confidential. For Publica, Confidential Information includes, without limitation, all nonpublic information regarding the Platform, the Publica Software, the Marketplace Content, and Publica’s products, services, technology, contracts, pricing, processes, inventions, “know-how,” trade secrets, and other business affairs. For Seller, Confidential Information includes, without limitation, all nonpublic information about the Seller Content and Seller’s customers, pricing, contracts, sales, trade secrets, and other business affairs.
    2. Exceptions. The foregoing obligations will not apply to any information that: (a) a party can show was independently developed by such party without any use of the Confidential Information; (b) was already in the possession of Seller prior to the commencement of this Agreement; (c) is or becomes publicly available through no fault of the receiving party; (d) is obtained from a third person without breach by such third person of an obligation of confidence; or, (e) is required to be disclosed pursuant to a valid judicial or administrative order if such party: (i) provides timely written notice of such order to the other party and reasonably cooperates with any efforts by the other party to contest or limit the scope of such order; and (ii) uses all reasonable efforts to limit the disclosure of such Confidential Information and seek a protective order or an equivalent to protect the disclosure of such Confidential Information. Information will not be deemed to be within the foregoing exceptions merely because it is: embraced by more general information in the public domain or in the possession of Seller; or, a combination of individual items of information that could be pieced together to reconstruct such combination from non-Confidential Information.
    3. No Publicity. Seller will not use the name, logo, trademarks or trade names of Publica or any of its affiliates or otherwise, directly or indirectly, refer to Publica or any of its affiliates in any publicity release, promotional material, customer or partner list, advertising, or marketing or business-generating effort, whether written or oral, without the prior written consent of Publica in each instance.
  7. Use of Subcontractors. Seller understands that Publica uses subcontractors to provide the Platform and related services, including third-party payment processors. Any activity that Publica is permitted to perform under the Agreement may be performed by Publica’s subcontractors (e.g., all payment processing may be performed by Publica’s third-party payment processor).
  8. Data Protection. Publica will only use the personal data of End Users collected in connection with the Seller Store (the “Customer Data”) for the purpose of operating the Platform and otherwise fulfilling the obligations under this Agreement. Both Publica and Seller will use reasonable measures designed to protect the security and confidentiality of the Customer Data they are processing.
  9. Representations and Warranties.
    1. Seller Warranties. Seller hereby represents, warrants and covenants that: (a) Seller owns or controls the Seller IP and has the rights to enter into this agreement and grant Publica the rights granted under this Agreement, including the right to offer and distribute the Seller Content to End Users through the Platform; (b) it will not upload or otherwise offer any Seller Content on or through the Platform that is illegal, stolen, or fraudulent, infringes any third-party intellectual property right, or that Seller otherwise does not have the right to sell in the applicable jurisdiction or in the United States; (c) the Seller IP will not otherwise infringe upon or violate the rights of any third party or violate any Applicable Law; (d) Seller will comply with all Applicable Laws, in performance of its obligations under this Agreement; (e) Seller’s privacy policy on the Seller Store accurately describes how End User data is handled through the Platform; and (f) all Seller Content uploaded or transmitted by or on behalf of Seller to the Platform is free from any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Platform or cause harm to the Platform, Publica or any End User.
    2. Publica Warranties. Publica hereby represents, warrants and covenants that: (a) Publica owns or controls the Platform and the Publica Software and has the rights to enter into this agreement and grant Publica the rights granted under this Agreement; (b) Publica has the right to license the Marketplace Content to Seller and make it available to End Users through the Seller Store on the terms set forth herein; (c) the use of the Platform and the Publica Software as authorized herein does not, and will not, infringe upon or violate the rights of any third party.
    3. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, THE PLATFORM, THE MARKETPLACE CONTENT, THE PUBLICA SOFTWARE, AND ANY SERVICES PROVIDED TO SELLER ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND NEITHER PUBLICA NOR ITS AFFILIATES OR THEIR SERVICE PROVIDERS OR LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (B) THAT THE PLATFORM, THE PROGRAM, OR THE PUBLICA SOFTWARE WILL MEET SELLER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; AND (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PUBLICA AND ITS AFFILIATES AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ANY AND ALL SUCH WARRANTIES.
  10. General Release and Indemnification.
    1. Section 1542. Seller agrees that the release set forth in this Agreement may apply to unknown and unanticipated claims, damages, and expenses, and Seller waives any rights that Seller may have under Section 1542 of the California Civil Code or any other similar enactment of any jurisdiction. California Civil Code Section 1542 states: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
    2. Indemnity. Seller will defend (at Publica’s option), indemnify and hold Publica and its affiliates (and their respective employees, shareholders, directors, agents and representatives) harmless from and against any and all costs, losses, liabilities, damages claims, actions, judgments, fines, penalties, penalties, interest, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) any breach or alleged breach of any of Seller’s representations, warranties, or obligations set forth in this Agreement; (b) any Seller Content, the advertisement, offer, sale or return of any Seller Content, including any actual or alleged infringement of any intellectual property rights by Seller or any Seller Content, (c) any claims by End Users or others arising out of the sale, distribution, or access of, or inability to access, the Store Content through the Platform; or (d) any act, error or omission, negligence, or misconduct by Seller or its officers, directors, agents, employees, subcontractors in connection with the Platform of this Agreement. Seller will provide all cooperation, documentation, and information reasonably requested by Publica in connection with any Claim. Publica will have the right to control all defense and settlement of Claims. Publica will indemnify and hold Seller and its affiliates (and their respective employees, shareholders, directors, agents and representatives) harmless from and against any and all costs, losses, liabilities, damages, claims, judgments, fines, penalties, penalties, interest, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim of any breach or alleged breach of Publica’s representations and warranties under this Agreement, including any claims that the Platform or the Publica Software, as used as authorized under this Agreement, infringes or violates the intellectual property rights of any third party.
  11. Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL (A) PUBLICA, ITS AFFILIATES AND THEIR PERSONNEL, SUPPLIERS, AND LICENSORS BE LIABLE TO SELLER OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT, OR THE USE OF, MISUSE OF, OR INABILITY TO USE THE PLATFORM, THE PUBLICA SOFTWARE OR THE MARKETPLACE CONTENT, OR FROM ANY SERVICES PROVIDED BY PUBLICA IN CONNECTION WITH THIS AGREEMENT, EVEN IF PUBLICA, ITS AFFILIATES AND THEIR PERSONNEL, SUPPLIERS, AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES) OR (B) PUBLICA’S, ITS AFFILIATES’ AND THEIR PERSONNEL’S, SUPPLIERS’, AND LICENSORS’ TOTAL LIABILITY TO SELLER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, THE PUBLICA SOFTWARE, THE MARKETPLACE CONTENT OR ANY SERVICES PROVIDED BY PUBLICA IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, WARRANTY, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY SELLER TO PUBLICA UNDER THIS AGREEMENT DURING THE 6 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE.
  12. Term and Termination.
    1. Term. The Agreement will commence on the Effective Date and will continue until terminated by either Party in accordance with the terms of the Agreement.
    2. Termination. Seller may cancel its subscription and terminate this Agreement at any time as set forth in Section 1 of this Agreement. Publica may terminate this Agreement and Seller’s use of the Platform (a) at any time upon thirty (30) days’ written notice to Seller if Seller is in material breach of this Agreement and does not cure such breach within such 30-day notice period; (b) at any time upon sixty (60) days’ written notice if Publica discontinues the Platform; or (c) at any time upon sixty (60) days’ written notice, provided that such termination is not effective until the end of the current Subscription Term (if applicable). Publica may suspend Seller’s access to the Program, the Platform or the Publica Software, or remove Seller Content or Seller’s Products from the Platform at any time in Publica’s sole discretion if Seller materially breaches any of the terms of this Agreement.
    3. Effects. If a termination by Publica is not due to any breach by Seller, then Publica will refund, on a prorata basis, any prepaid Subscription Fees paid by Seller. If Publica terminates the Agreement for Seller’s breach, no refund will be provided. In the event of termination for any reason, Seller’s access to the Platform (including End User access to the Seller Store) will terminate, and Seller will be solely responsible for maintaining copies of all Seller Content and End User information that it may need to access and maintain after termination and for fulfilling any obligations to End Users after termination, unless otherwise agreed to in writing by Publica. Any termination of this Agreement will be without prejudice to the rights of either Party against the other in respect of any prior claim or breach of any of the provisions of this Agreement. Any obligations of the Parties relating to Sections 5, 6, 8, 9, 10, 11, 12 and 13, as well as any other obligations under this Agreement that by their nature are intended to survive, will survive termination of this Agreement.
  13. Miscellaneous.
    1. Changes to Agreement. Publica may change the terms of this Agreement at any time by posting the amended Agreement on the Program. Any changes to this Agreement will be effective upon posting the revised version of this Agreement on the Program (or such later effective date as may be indicated at the top of the revised Agreement). Publica may also notify Seller via the Platform or by email to the email address associated with Seller’s Account. If Seller does not agree to the Agreement as amended, Seller must stop using the Platform and cancel Seller’s Account. Seller’s continued use of the Platform after the date the amended Agreement is posted will constitute Seller’s acceptance of the amended Agreement.
    2. Notices. Publica may need to communicate with Seller from time to time regarding this Agreement, the Platform or Program. Publica may provide such notice to Seller via the Platform or by email to the email address associated with Seller’s Account. Seller will send all legal notices to Publica by certified mail (return receipt requested) or by a nationally-recognized or internationally-recognized overnight courier to the following address: 651 N. Broad St. Suite 206, Middletown DE 19709. For all other notices or inquiries, Seller will contact Publica through the Platform or as otherwise specified in the Platform Policies.
    3. Subcontracting. Seller may use subcontractors in performance of its obligations under this Agreement. Seller will ensure its subcontractors comply with this Agreement and Seller will remain fully responsible for the acts and omissions of its subcontractors. Publica may require Seller to cease use of any subcontractor in Publica’s sole discretion, and Publica may suspend Seller’s Account or terminate this Agreement if Seller does not cooperate with such request.
    4. Relationship. The Parties to this Agreement are independent contractors, and no other relationship will be implied from this Agreement. Nothing contained in or done pursuant to this Agreement will be construed as creating a partnership, agency, or joint venture, and neither Party will become bound by any representation, statement, or act of the other Party. Seller is responsible for all expenses necessary to fulfill its obligations under this Agreement.
    5. Force Majeure. Neither Party will be liable to the other for any failure to perform its obligations under this Agreement to the extent such failure is due to war, riots, embargoes, strikes or other concerted acts of workers, casualties, accidents or other causes to the extent that such failure and the consequences thereof are reasonably beyond the control and without the fault or negligence of the Party suffering the event.
    6. Governing Law; Disputes; Jury Waiver. The Agreement shall be governed by, and will be interpreted according to, the laws of the State of Delaware, and the United States of America, without regard to any conflict-of-law provisions.
      1. If Seller is a U.S. entity, any controversy, claim, or dispute (each a “Dispute”) of whatever nature arising between the Parties or arising out of or relating to the Agreement will be resolved exclusively by a state or federal court situated in New York, New York and each Party irrevocably submits to the personal jurisdiction of such courts for such purpose. The Parties knowingly and voluntarily waive their rights to have their Dispute tried by a jury. The Parties recognize that certain business relationships could give rise to the need for a Party to seek emergency, provisional, or summary relief. Immediately following the issuance of any such relief, the Parties agree to the stay of any judicial proceedings of all underlying Disputes.
      2. If Seller is a non-U.S. entity, any Dispute of whatever nature arising between the Parties or arising out of or relating to the Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules and Procedures. The tribunal will consist of a sole arbitrator who will have experience with online terms and conditions and commercial contracts. The place of the arbitration will be New York, New York, or such other location as may be agreed by the Parties. The language to be used in the arbitral proceedings will be English. The award rendered by the arbitrator will be final, will identify a winning Party, and judgment may be entered upon the award in accordance with applicable law in any court having jurisdiction thereof. The fees and expenses of the arbitrator will be shared by the Parties. Notwithstanding the foregoing, Publica has the right to seek injunctive or other equitable relief in connection with any matter based upon or arising out of this Agreement in any forum having proper legal jurisdiction over such matter. The Parties will maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy, or to enforce an award, or unless otherwise required by law or judicial decision.
    7. Assignment. This Agreement, and any associated rights or obligations, may not be assigned or otherwise transferred by Seller without Publica’s prior written consent. This Agreement may be assigned by Publica without restriction. This Agreement is binding upon any permitted assignee.
    8. No Waiver. All waivers by Publica will be effective only if provided in writing. Any failure or delay by Publica to strictly enforce any provision of this Agreement will not operate as a waiver of that provision, any other provision, or any subsequent breach of that or any other provision.
    9. Severability. If any term or provision of the Agreement is held by a court having competent jurisdiction to be invalid or unenforceable, such term or provision shall be deemed severable, and the remainder of the Agreement shall remain in full force and effect.
    10. Entire Agreement. This Agreement is the complete and entire understanding and agreement between the Parties regarding the Platform and supersede all previous or contemporaneous written and oral agreements and communications relating to the subject matter of this Agreement, all of which are merged into this Agreement.