Terms of Service
Last updated: 13 Dec 2021
If you are using Comments.sh comments on your website you are a “Publisher” and you also agree to the Publisher Terms of Service which follow the User Terms of Service below.
USER TERMS OF SERVICE.
Sillmaur Development (“import.comments.sh”, “comments.sh”, “we”, “us” or “our”) offers an online public comment sharing platform where you may participate in conversations with peers and enjoy an interactive experience. These Terms of Service (the “Terms”) govern your use of and access to our comment sharing platform, software and website (collectively the “Service”) by using the Service you understand and agree to be bound by these Terms.
THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Terms of Service
You may only access and use the Service if you agree to be bound by these Terms, are over the age of 13, and are not a person barred from receiving or using the Services under the laws of the applicable jurisdiction. If you are accepting these Terms and using the Service on behalf of a company, organization, government or other legal entity, you represent and warrant that you are authorized to do so. In the event you breach these Terms, comments.sh may, in our sole discretion, revoke your rights to use the Service and terminate your account.
Copyright Infringement: Digital Millennium Copyright Act of 1998 (“DMCA”)
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement under the DMCA and is accessible via the Service, please notify comments.sh’ copyright agent at the contact information below. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit Sillmaur Development to contact you, such as your address, telephone number, and, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
DMCA Agent Contact Information:
Attn: DMCA Notice Sillmaur Development
3437 ES Nieuwegein
Email: [email protected]
Please note that this procedure is exclusively for notifying Sillmaur Development and its affiliates that your copyrighted material has been infringed. In accordance with the DMCA and other applicable law, Sillmaur Development has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Sillmaur Development may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Rights Regarding User Content.
You retain your rights to any User Content (“User Content”). By submitting, posting or displaying any Content on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, comments.sh a worldwide, royalty-free, non-exclusive, sublicensable, transferable, perpetual and irrevocable license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, distribute, and make derivative works of such User Content in any and all media, technology or distribution methods (now known or later developed). This license authorizes comments.sh to make your User Content available, to the rest of the world and to let others do the same. You agree that this license also includes the right for comments.sh to provide, promote, and improve the Services and to make User Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion, publication, or otherwise of such User Content on other media and services. Such use by comments.sh or other companies, organizations or individuals may be made with no compensation paid to you with respect to your content.
Comments.sh’ name, logo, designs, trademarks, trade dress, service marks, copyrights, patents or other intellectual property rights in comments.sh’ software, images, text, graphics, illustrations, logos, APIs etc. (the “Comments.sh Content”) is the exclusive property of comments.sh or its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or to comments.sh Content, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Comments.sh Content. Use of the Comments.sh Content for any purpose not expressly permitted by these Terms is strictly prohibited.
Please review the Comments.sh Service Rules below, in consideration of the license to use the Services you agree to comply with the Service Rules which are part of these Terms and outline what is prohibited on the services. Please also note, Comments.sh comments often appear in websites and online communities not owned by Comments.sh, these websites and online communities may have their own rules about content and comments on their site, please respect the rules of the communities in which you are using Comments.sh to comment.
Bullying; Harassment; Hate Speech. We do not allow bullying or hate speech on the Comments.sh platform. Hate speech attacks people based on “protected characteristics” which include race, ethnicity, sexual orientation, religious affiliation, sex, gender, gender identity or serious disability or disease. Bullying targets individuals with the intention of degrading or shaming them. Bullying is especially harmful to minors because they may be more vulnerable. Comments.sh prohibits bullying and hate speech and requires our users to respect each other and comment with the respect and sensitivity of others in mind.
Trademark Rights and Rights of Publicity; Impersonation. Users are required to respect the intellectual property rights of others, and are prohibited from posting content that violates someone else’s copyright, trademark, or right of publicity. Additionally, users are prohibited from impersonating others in a manner that does or is intended to mislead or deceive others. Accounts portraying another person in a confusing or deceptive manner may be banned at Comments.sh’ discretion.
Safety; Self-Harm. Users are prohibited from promoting or encouraging suicide or self-harm. When we receive reports that a person is threatening suicide or self-harm, we may take a number of steps to assist them, such as reaching out to that person and providing resources such as contact information for our mental health partners.
Violence and Criminal Acts. Users are prohibited from promoting or publicizing violent crime, theft, or fraud. We also prohibit users from making credible threats of violence, serious physical harm, or death. This includes, but is not limited to, promoting, publicizing or threatening terrorist activity, organized hate crime, mass or serial murder, human trafficking, organized violence.
Child sexual exploitation. Comments.sh prohibits content that sexually exploits or endangers children. If we become aware of apparent child exploitation, we will report it in compliance with applicable law.
Inappropriate Content. Graphic media, including explicit violence, gore, and pornographic content are not allowed.
Deceitful data collection; Malware Collecting or harvesting any personally identifiable information, including account names, from the Service; attempting to interfere with, to compromise the system integrity or security or to decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading data, viruses, worms, or other software agents through the Service accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xiii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
Spam. Users are prohibited from posting or sending Spam through the service. What constitutes Spam is constantly evolving. Generally, Spam means repeated actions that negatively impact others, such as repeatedly posting a comment with the intent to post a thread etc.
The list of rules above is contently evolving. Comments.sh may update and revise these rules at any time.
Disclaimers and Limitation of Liability
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, Comments.sh, ITS PARENTS, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, AND LICENSORS (THE “Comments.sh ENTITIES”) DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE Comments.sh ENTITIES DO NOT WARRANT OR REPRESENT AND DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL LIABILITY FOR: (I) THE COMPLETENESS; ACCURACY, RELIABILITY OR CORRECTNESS OF THE SERVICES OR ANY CONTENT; (II) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE OR CONTENT; (III) THE DELETION OF OR FAILURE TO STORE OR TRANSMIT ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED BY THE SERVICE; (IV) THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, SECURE, OR ERROR FREE. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE Comments.sh ENTITIES, BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL THE Comments.sh ENTITIES BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IN NO EVENT SHALL Comments.sh’ CUMULATIVE LIABILITY EXCEED $1,000 TO YOU AT ANY TIME.
THE SERVICE IS CONTROLLED AND OPERATED FROM ITS FACILITIES IN THE U.S.A. THE Comments.sh ENTITIES MAKE NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR US IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE ENTIRELY RESPONSIBLE FOR ANY LIABILITY INCURRED BY DOING SO.
Any dispute resolution proceedings relating to these Terms or the Site will be conducted only on an individual basis and not as a class, consolidated, joined or representative action and the parties expressly waive all rights to commence or participate in any class, consolidated or representative action/proceeding. You agree that Comments.sh’ agreement to arbitrate claims constitutes consideration for such waiver.
You agree to defend, indemnify and hold harmless Comments.sh and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) relating to your use of Service or actions taken through the Service, your User Content or any other data or content transmitted or received by you; or your violation of applicable law, third party proprietary rights or these Terms.
In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect. Comments.sh’ failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
Contact Sillmaur Development:
3437 ES Nieuwegein
Email: [email protected]
PUBLISHER TERMS OF SERVICE AGREEMENT
These Publisher Terms of Service Agreement (the, “Agreement”) are entered into by and between Sillmaur Development (“Licensor”) and the Publisher executing this Agreement electronically through the Licensor’s website. Therefore, in consideration of the mutual covenants of the parties and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows:
1.Access and Use.
1.1 Access. Licensor hereby grants Publisher a non-exclusive, non-transferable right to access and use Licensor’s software application, application program interface (API), website, and software as a service, (the “Service”) during the Term (as defined below). Publisher may integrate the Service on any web sites owned, operated or controlled by Publisher as set forth in the Service Order, each an “Applicable Site”. Publisher may add Applicable Sites not set forth in the Service Order upon execution of an additional Service Order which shall be governed by this Agreement. Publisher shall not in any way deliver, transfer, or otherwise provide access to or make available the Service to any third parties except as specifically permitted by this Agreement. Publisher is solely responsible for the activity that occurs on Publisher’s account, and is required to keep its account password secure. In the event of any breach of security or unauthorized use Publisher’s account, Publisher shall notify Licensor immediately. Licensor will not be liable for any losses caused by any unauthorized use Publisher’s account.
1.3 Updates. The parties agree that Licensor may make updates, modifications or improvements (collectively, “Updates”) to the Service from time to time in its sole discretion.
2. Payments and Fees. Publisher shall pay Licensor all fees set forth on the Service Order, including any sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by Licensor by any authority in connection with this Agreement, excluding taxes based upon Licensor’s net income (collectively, the “Fees”).
2.1 Paid Subscription. In the event Publisher elects a Paid Subscription for the Service, the Fees for the Service shall be billed in advance yearly and shall be due thirty (30) days from the date of invoice.The first invoicing will occur immediately after execution of this Agreement. Any additional customization or setup fees for additional integration work or work required to add Applicable Sites shall be set forth on a subsequent Service Order Form which shall be governed by the terms of this Agreement. Publisher shall be responsible for interest on all Fees overdue by more than thirty (30) days from the date on the invoice at a rate of the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by applicable law. Such interest will accrue on a daily basis and be compounded on a monthly basis. Publisher will also be responsible for payment of all reasonable expenses (including reasonable attorneys’ fees and costs) incurred by Licensor in collecting any overdue amounts.
3. Data Ownership and Privacy.
3.1 Data Processing. For the purposes of this clause, the terms “controller”, “data subjects”, “personal data”, “processor”, “processing”, and “supervisory authority” shall have the meaning given to them by the European Regulation 2016⁄679 (“GDPR”). Licensor shall be the controller of the Comments.sh Personal data, and Publisher shall be the processor and (i) process Comments.sh Personal Data only in accordance with the Permitted Purpose. If Publisher is required to process Comments.sh Personal Data for any other purpose by a law to which Publisher is subject, Publisher shall inform Licensor of this requirement before the processing, unless that law prohibits this on grounds of public interest, (ii) ensure that its personnel and subcontractors who have access to the Comments.sh Personal Data have committed themselves to confidentiality and are aware of and comply with Publisher’s duties and their personal duties and obligations under this Agreement (iii) implement appropriate technical and organizational security measures to ensure a level of security appropriate to the risks that are presented by the processing of Comments.sh Personal Data. In case of a personal data breach which affects Comments.sh Personal Data, Publisher will notify Licensor without undue delay after becoming aware of it, (iv) taking into account the nature of the processing, assist Licensor by appropriate technical and organizational measures insofar as it is possible to fulfill Licensor’s obligations to respond to requests from data subjects exercising their rights; (v) taking into account the nature of the processing and the information available to Publisher, assist Licensor, at Licensor’s cost, to ensure compliance with the obligations under the GDPR with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (vi) upon termination of this Agreement or upon Licensor’s request, destroy or return all Comments.sh Personal Data to Licensor (unless a law requires storage of the Comments.sh Personal Data), and (vii) make available to Licensor all information reasonably necessary to demonstrate compliance with the obligations laid down in this section and allow for and contribute to audits, including inspections, conducted by Licensor or an auditor mandated by Licensor. Licensor acknowledges and agrees that Publisher may retain its affiliates and other third parties as sub-processors (all together “Sub-Processors”) in connection with the provision of the Services having imposed on such Sub-Processors the same data protection obligations as are imposed on Publisher under this Agreement. Publisher will be liable to Licensor for the performance of the Sub-Processors’ obligations. Publisher will inform Licensor in advance of any changes concerning the addition or replacement of third party processors.
5. Intellectual Property. Notwithstanding anything to the contrary in this agreement, all intellectual property rights (a) owned or licensed by a party before the date of this agreement and (b) created, developed or licensed by that party after the date of this Agreement independently of this Agreement shall continue to vest in that party or its licensors. Publisher acknowledges that all intellectual property rights in the Service (including any improvements, enhancements and modifications thereto), Licensor’s Confidential Information and any other software, data, or information provided or made available to Publisher under this Agreement (together the “Licensor’s Intellectual Property”) shall belong to Licensor and Publisher shall have no rights in or to Licensor’s Intellectual Property other than the right to use it in accordance with the terms of this Agreement. Unless otherwise agreed to in writing, Publisher shall not remove or obscure any copyright, trademark or patent notice that appears on the Service.
6. Confidential Information
6.1 Confidential Information. In connection with this Agreement, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”).Confidential Information means any non-public data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, source code, plans, financial information, Publisher and supplier lists, forecasts, and projections. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party’s possession free of any confidentiality obligations with respect thereto; (v) can be documented as independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction. Each party shall use reasonable measures to maintain the Confidential Information of the other party in confidence and shall not disclose, publish or copy any part of such Confidential Information, to any third party.Each party shall only use the Confidential Information of the other party for the purpose of this Agreement and shall limit disclosures to any employees on a strict need-to-know basis.Notwithstanding the foregoing, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice (if permissible) to the other party to contest such order or requirement.Upon request, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party.
7. Representations and Warranties.
7.1 Mutual Representations. Each party represents and warrants to the other party that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement and the performance of its obligations hereunder, do not and will not violate any agreement to which it is a party or by which it is bound; and (iii) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms.
7.2. Licensor Representations. Licensor makes the following ongoing representations and warranties: (i) that Licensor’s software is not contaminated by harmful code (e.g., self-propagating program instructions commonly called viruses or worms); and (ii) that if Licensor software contains any third party software, Licensor has all rights necessary to license such software.
7.3 Publisher Representations. Publisher represents and warrants to Licensor that: (i) it owns, operates, or controls all Applicable Sites; (ii) the Applicable Sites do not contain materials that infringe or violate any third party proprietary rights including, but not limited to, third party intellectual property rights, or materials that violate any applicable laws, rules, or regulations; and (iii) the Applicable Sites do not contain any harmful or disabling software code, including without limitation any virus, time-bomb or trojan horse.
7.4 Disclaimer of Warranties. except for the express warranties provided for herein, the service, and any support services are provided to Publisher “as is” and Licensor expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and noninfringement, and any warranties arising out of course of dealing, usage, or trade. Licensor does not warrant that the service or any updates will meet Publisher’s specific requirements or that the operation of the service or updates will be completely error-free or uninterrupted. Licensor shall not be liable to Publisher for any inoperability of the service or for any loss of information or other injury, damage or disruption of any kind.
8. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICE AND/OR UPDATE(S), WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL LICENSOR’S CUMULATIVE LIABILITY TO THE OTHER EXCEED THE FEES PAID TO LICENSOR BY PUBLISHER DURING TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY.
9.1 Licensor. Licensor shall indemnify, defend and hold harmless Publisher and its affiliates, and their respective shareholders, officers, directors, employees, agents, successors and assigns from and against any and all third party claims for losses, liabilities, costs, expenses (including amounts paid in settlement and reasonable attorneys’ fees and expenses), penalties, judgments and damages (“Losses”) resulting from any claim by a third party that the Services or infringe or violate the intellectual property rights of any third party, provided, in each case, that Licensee is promptly notified in writing of the claim; (ii) Licensor has sole control of the defense and any negotiations for the settlement of such claim; and (iii) the indemnified party provides to Licensor, at Licensor’s expense, with all reasonable assistance, information, and authority necessary to perform the above.Should the Services Licensor’s opinion, be likely to become, the subject of a claim of infringement, Licensor may, at its option and expense, either procure for Publisher the right to continue using the Services or replace or modify the Services or Work Product in order to make them non-infringing.
9.2 Publisher. Publisher agrees to indemnify, defend and hold harmless Licensor, its affiliates and their respective officers, directors, and employees from and against any and all Losses to the extent that such is based upon any third party claim in connection with (i) Publisher’s breach of any of its representations or warranties made hereunder; (ii) Publisher’s violation of any applicable laws, rules or regulations, including, but not limited to, any data protection and data privacy laws and regulations and industry association guidelines; or (iii) Publisher’s violation of any third party intellectual property right.
10. Term and Termination
10.1 Term. This Agreement shall commence on the Effective Date and shall continue for an initial term of twelve (12) months following the Launch Date (the “Initial Term”). After the expiration of the Initial Term, this Agreement shall automatically renew for additional twelve (12) month periods unless either party gives not less than ninety (90) days’ prior written notice of its intention not to renew (the initial term and any Renewal Term collectively referred to as the “Term”).
10.2 Termination. This Agreement shall terminate: (i) by a party thirty (30) business days after the other party’s receipt of written notice that such party is in material breach of any of the terms or conditions set forth in this Agreement, unless such party cures such breach within said thirty (30) business days period or (ii) upon written notice if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated its business voluntarily or otherwise, and same has not been discharged or terminated within ninety (90) days. Notwithstanding the foregoing, Licensor may immediately and without prior notice terminate or suspend Publisher’s access to the Service in the event Licensor reasonably believes that continued Publisher access or storage may harm the Service, expose Licensor to liability or is necessary to comply with applicable law.
10.3 Obligations Upon Termination. Upon the effective date of expiration or termination of this Agreement for any reason, whether by Publisher or Licensor, Publisher’s right to use the Service shall immediately cease. It is Publisher’s sole responsibility to download User Data; Licensor has no obligation to make any data available to the Publisher following the date of termination. Promptly upon expiration or termination of this Agreement for any reason, Publisher shall pay any unpaid and outstanding Fees due to Licensor that have accrued as of the date of expiration or termination and Publisher shall return to Licensor, or certify the destruction of, all copies of the Licensor’s Confidential Information.
11. General Provisions
11.1 Severability and Waiver. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties.The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
11.2 Independent Contractors. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.Publisher may not assign any of its rights or obligations under this Agreement to any other entity without the prior written consent of Licensor, which shall not be unreasonably withheld.
11.3 Assignment. Neither party may, or shall have the power to, assign this Agreement without the prior written consent of the other; provided, however, that either party may assign its rights and obligations under this Agreement without the approval of the other party to any subsidiary or Affiliate or successor in connection with a merger, consolidation, sale of all of the equity interests of the party, or a sale of all or substantially all of the assets of the party to which this Agreement relates; provided, that in no event shall such assignment relieve such party of its obligations under this Agreement. Subject to the foregoing, this Agreement shall be binding on the parties hereto and their respective successors and assigns.
11.4 Entire Agreement. This Agreement, including any exhibits and schedules attached hereto, constitutes the entire agreement between the parties on this subject matter and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. Neither Party will be bound by, and each party specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this agreement).No amendment or modification of this Agreement shall be made except by a writing signed by both parties.
11.5 Survival. The provisions of this Agreement, which by their nature are intended to survive after termination or expiration of this Agreement shall so survive the expiration or termination of this Agreement regardless of the reason or reasons therefore.
11.6 Freedom of Action. Either party is free to enter into similar agreements with others and may design, develop, manufacture, acquire or market competitive products or services. Either party may assign and re-assign its employees in any way it may choose and neither party is restricted in any way from hiring or soliciting employees of the other.
11.7 Counterparts Acceptable. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
11.8 Publicity. Licensor shall be entitled, without prior consultation with or approval of the Publisher, to make press releases or other public disclosures with respect to this transaction. Publisher grants Licensor a non-exclusive license during the Term to use its name and trademarks in marketing materials, website or customer lists; provided, that Publisher has the right to notify Licensor in writing if it does not agree to any of the foregoing uses of its name and trademarks.
11.9 Force Majeure. Except for payment obligations, neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform, in full or in part, its obligations hereunder, provided that there is due diligence in attempted performance under the circumstances and that such delay or failure is due to fire, earthquake, unusually severe weather, strikes, government sanctioned embargo, flood, act of God, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier, or any other circumstance substantially beyond the control of the party to be charged.
11.10 Notice. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested) or sent by email, and on the date the notice is sent when sent by verified facsimile or email, in each case to the respective Parties at the address first set forth hereto.