PLEASE READ THIS SERVICES LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SERVICES OFFERED BY LITHIVE, ("LitHive"). THIS AGREEMENT SHALL GOVERN THE SERVICES AND ANY ORDER FORM SUBMITTED BY CUSTOMER AND ACCEPTED BY LitHive. BY CLICKING THE "AGREE" BUTTON OR BY USING THE SERVICES IN ANY MANNER, YOU OR THE ENTITY YOU REPRESENT ("CUSTOMER") AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. USE OF LitHive'S SERVICES IS EXPRESSLY CONDITIONED UPON CUSTOMER'S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, NAVIGATE AWAY FROM THIS PAGE AND CUSTOMER WILL HAVE NO RIGHT TO USE THE SERVICES. BY CLICKING THE "AGREE" BUTTON, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
TERMS AND CONDITIONS
1. SERVICES AND SUPPORT
1.2 LitHive will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Subject to the terms hereof, LitHive will provide reasonable support to Customer for the Services from Monday through Friday during LitHive's normal business hours in accordance with the support levels the correspond with the Services purchased by Customer. Notwithstanding the foregoing, LitHive reserves the right to suspend Customer's access to the Services: (i) for scheduled or emergency maintenance, (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to LitHive (iii) exceeding limits in the Service Capacity (iv) volume limitations based on the number of calls against our application programming interface and (v) in the event LitHive deems necessary with respect to the Services that enable Customer to provide a public website hosted by LitHive.
2. PUBLICATION THROUGH THE SERVICES
2.1 The Services enable Customer to upload, publish, distribute and sell digital Publications and other content through the Services ("Content"). A "Title" refers to each individual digital publication of Content that Customer offers for sale and/or distribution, such as a single novel, an anthology, a single story, an audio book, or other collection of work that Customer packages into a single offering.
2.2 Customer hereby grants LitHive a worldwide, non-exclusive, royalty-free (except as set forth in Section 7), fully paid, sublicensable and transferable license to use, modify (solely for formatting purposes), sell, reproduce, distribute, display, and publicly perform Publications, and otherwise fully exploit Content other than Publications in connection with the Services, including without limitation for promoting and redistributing the Services in any media formats and through any media channels. For clarity, as set forth in Section 5.1 below, these license grants to LitHive do not affect Customer's other ownership or license rights in its Content, including the right to grant additional licenses to Customer's Content, unless otherwise agreed in writing.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Access to the Services may require the Customer to install certain software applications. Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services ("Software") (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of End Users; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation).
3.2 Customer will cooperate with LitHive in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as LitHive may reasonably request. Customer will also cooperate with LitHive in establishing a password or other procedures for verifying that only Customer (or its authorized employees if applicable) have access to any administrative functions of the Services. Customer (or its designated employee if applicable) will be responsible for all matters relating to this Agreement ("Primary Contact"). Customer may change the individual designated as Primary Contact at any time by providing written notice to LitHive. Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer's knowledge or consent. Customer hereby agrees to indemnify and hold harmless LitHive against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of this Agreement or otherwise from Customer's use of Services.
4.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business (hereinafter referred to as "Confidential Information" of the Disclosing Party).
4.2 Customer acknowledges that LitHive does not wish to receive any Proprietary Information from Customer that is not necessary for LitHive to perform its obligations under this Agreement (i.e. content not intended to be published as a Title), and, unless the parties specifically agree otherwise, LitHive may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights (including rights of publicity and privacy) with respect to that Content. Customer shall be solely responsible for filing its copyrights and any other intellectual property with the appropriate governmental body. It is the Customer's responsibility to place a copyright notice on the copyright page or some other prominent place in the Content.
5.2 Except as expressly set forth herein, LitHive alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service and/or the Software, which are hereby assigned to LitHive. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Customer is hereby granted a non-exclusive, nontransferable, revocable right to use the Metrics for its internal analysis purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
6. PAYMENT OF FEES
6.1 Customer shall pay LitHive the applicable fees as set forth on the in the Order Form (the "Fees"). LitHive reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Customer, effective upon the next Renewal Term in accordance with Section 8, below. Except as otherwise specified herein or in an Order Form, (i) Fees are based on services purchased and not actual usage except for any fees specifically identify as being based upon usage, and (ii) all Fees are non-cancelable and fees paid are non-refundable. If Customer wishes to change the level of Services ordered, Customer may do so at any time; provided, however, that (i) the change in Services will not take effect until the next billing period and (ii) the appropriate fee adjustment will be made at the time LitHive initiates such change. If Customer use of the Services exceeds the Service Capacity set forth on the Order Form, Customer may be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Customer will pay LitHive for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Schedule and the Method of Payment. If not otherwise specified, payments will be due within thirty (30) days of invoice.
6.2 The charges payable by Customer for any Renewal Term will be equal to LitHive's then current standard charges for the Services provided under such Order Form in effect during the prior term, unless LitHive has given Customer notice of a modification in the fees in accordance with this Section 6.
6.3 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys' fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on LitHive's net income) unless Customer has provided LitHive with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to LitHive on account thereof.
7. REVENUE SHARE
7.1 If applicable pursuant to the Services purchased by Customer, LitHive will pay Customer the applicable Revenue Share percentage of the Net Revenue set forth on the Order Form ("Revenue Share Payment"). "Net Revenue" means the amount actually received by LitHive from end users for the purchase of Customer's Title(s), less (i) all sales, excise or value added taxes, if any, which are required to be collected from end users; (ii) any discounts made available to end users for the Content; (iii) bank charges, credit card brand charges, payment engine charges, and payment processor charges; and (iv) fees charged by distribution partners (i.e. by way of example only, partners such as Amazon, Apple, etc.).
7.2 LitHive will make Revenue Share Payments at least on the 1st of every other calendar month starting with February; provided, however, that LitHive shall have no obligation to make any Revenue Share Payment until the total amount due Customer for such Revenue Share payments equals at least ten US dollars ($10) or it is the end of the calendar year, whichever comes first.
7.3 LitHive reserves the right to (i) modify its Revenue Share percentages at any time, upon at least thirty (30) days prior notice to Customer, effective upon the next Renewal Term in accordance with Section 8, below and (ii) withhold or offset Revenue Share Payments in the event of a breach of the Services Agreements.
8.1 Unless terminated as described in this Section 6, this Service Agreement is for the Service Term as specified in the Order Form. Thereafter, upon expiration of the Service Term specified in the applicable Order Form, or upon expiration of any Renewal Term as specified herein, this Agreement shall automatically renew for additional terms of the same length as the initial Service Term beginning on the anniversary of the Effective Date of the applicable Order Form (each a "Renewal Term") unless you opt out of auto-renewal, which can be done by visiting your account settings page.
8.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term or the then-current Renewal Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.
8.3 Upon expiration or termination of this Agreement, Customer's access to the Services shall terminate. The following sections of this Service Agreement will survive termination: Section 3 "Restrictions and Responsibilities", Section 4 "Confidentiality", Section 5 "Intellectual Property Rights", Section 6 "Payment of Fees", Section 7 "Revenue Share Payments" (solely to the extent Customer is owed Revenue Share Payments for Publications sold prior to termination), Section 10 "Warranty Disclaimer", Section 11 "Limitations of Liability" and Section 12 "Miscellaneous".
9. CLIENT SOFTWARE SECURITY
LitHive represents and warrants that it will not knowingly include, in any LitHive software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, LitHive fails to comply with the warranty in this Section, Customer may promptly notify LitHive in writing of any such noncompliance. LitHive will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
10. WARRANTY DISCLAIMER
THE SERVICES AND LitHive CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. LitHive HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL LitHive BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF LitHive HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF LitHive, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (I) TEN THOUSAND DOLLARS, OR (II) THE FEES PAID TO LitHive HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with LitHive's prior written consent. LitHive may freely transfer and assign any of its rights and obligations under this Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind LitHive in any respect whatsoever.
In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
LitHive will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Mateo County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by LitHive. LitHive is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.