BACKGROUND:
Pubnet LLC provides an Internet-based electronic commerce system (“PUBNET®”) linking publishers, distributors, wholesalers, bookstores and other retailers (each a “Trading Partner” and collectively as “Trading Partners”) for the electronic exchange of predefined data sets to facilitate the sale, purchase or distribution of books and related products.
Subscriber is a:
Publisher Distributor Wholesaler
AGREEMENT:
1. Services. Pubnet LLC shall maintain and administer PUBNET® and its use. So long as this Agreement is in effect, and Subscriber complies with the accompanying terms and conditions of use, Pubnet LLC will accept properly formatted messages, including but not limited to, Transaction Data (as defined in Article 2.2) from Subscriber, will cause such messages to be transmitted to the electronic mailboxes of Subscriber’s Trading Partners, and shall allow Subscriber access to its electronic mailbox to retrieve messages and access to other services available from time to time over PUBNET®.
2. Fees. Subscriber shall pay, as applicable, the fees set forth on Schedule A to this Agreement for use of PUBNET® and Services. Fees are due and payable in full within 30 days from the date of invoice. Amounts not paid when due may be subject to the maximum interest permitted by law. Pubnet LLC may also terminate, without prior notice, Subscriber’s access to PUBNET® and to Services if amounts owed and unpaid by Subscriber are more than 90 days past due. Pubnet LLC may set fees or charges for new Services, and reduce fees and charges, at any time.
This Agreement is effective only upon execution by both Subscriber and Pubnet LLC, and each party represents and warrants that it has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and that the person whose signature appears below is duly authorized to enter into this Agreement on behalf of the party whom such person represents.
This Agreement, including all schedules attached hereto and made a part hereof, represents the entire and integrated agreement between the parties and supersedes prior negotiations, representations or agreements, either written or oral. This Agreement may be amended or modified only in writing signed by both parties.
TERMS AND CONDITIONS OF USE
ARTICLE 1 SERVICES
1.1 Availability. This Agreement applies to the Services described on Schedule A hereto, as amended from time to time (“Services”). Unless otherwise indicated in the related description, PUBNET® access is available to Subscriber twenty-four (24) hours a day, seven (7) days a week. Pubnet LLC may temporarily suspend PUBNET® access and Services for maintenance purposes, and when reasonably possible give advance notice to Subscriber of the suspension. Pubnet LLC shall use its best efforts to reestablish PUBNET® access and Services quickly in the event of unscheduled interruption.
1.2 Legal Requirements. Pubnet LLC shall comply with laws applicable to its Services, including, without limitation, the Electronic Communications Privacy Act of 1986, as amended, as it relates to private electronic messages sent or received through PUBNET®. Pubnet LLC is not responsible for, and shall not inspect, the contents of any Transaction Data (as defined in Article 2.2), other than Transaction Data headers and addresses, or disclose their contents to anyone other than, or as directed by, the originating party or the intended recipient, except as provided in Article 6.2 or required by law. This obligation respecting Transaction Data is independent of, and is not limited by, Article 6.
1.3 Message Deletion. Pubnet LLC may delete Transaction Data from electronic mailboxes after a period of time established by Pubnet LLC. Pubnet LLC is not responsible for retaining or delivering Transaction Data in the electronic mailbox of, or that are addressed to, a suspended or terminated subscriber. Pubnet LLC shall notify the sender of any message if Pubnet LLC is unable to deliver the message.
1.4 No Agency. Pubnet LLC provides specific PUBNET® services to Subscribers, functioning as an electronic mailbox into which communications can be placed for Subscribers’ Trading Partners, and does not act for any Subscriber or Trading Partner as a general matter. Pubnet LLC is an independent contractor, and neither Pubnet LLC nor Subscriber is the employee, agent, partner, or joint venture of the other in performing this Agreement.
ARTICLE 2 CONDITIONS OF USE AND ACCESS
2.1 Operating Rules. Subscriber shall use PUBNET® and Services in a manner consistent with applicable laws and in accordance with operating rules governing Subscriber activity on PUBNET® adopted by Pubnet LLC. Operating rules include format, content, and other standards (collectively as the “Standards”) for the electronic exchange of Transaction Data and will be available on the PUBNET® electronic bulletin board or Internet home page. Notice of changes to the Standards will be posted on the PUBNET® electronic bulletin board or Internet home page, and shall be effective no earlier than 90 days following posting. Pubnet LLC shall endeavor to provide e-mail notice of any such changes to Subscribers who request such notification.
2.2 Electronic Messages. Subscriber may electronically transmit and receive from Trading Partners standardized documents including, but not limited to, the following: Purchase Orders, Purchase Order Acknowledgements, Functional Acknowledgements, Advanced Ship Notices, and Invoices (collectively as “Transaction Data”).
2.3 Subscriber’s Responsibility. Subscriber is solely responsible for all use of its PUBNET® account, for the payment, as applicable, of all charges incurred for such use, and for any violation of the terms of this Agreement by anyone using its account. For the purposes of the preceding sentence, “use” shall have the meaning stated in Article 10.2. Subscriber may not resell PUBNET® Services or use PUBNET® to perform services for unrelated third parties.
ARTICLE 3 EQUIPMENT
Subscriber, at its own expense, shall provide and maintain the equipment, software, and services necessary to effectively and reliably connect to PUBNET®, transmit and receive Transaction Data, and use other Services.
ARTICLE 4 INFORMATION CARRIED ON PUBNET®
4.1 Writing. Transaction Data properly transmitted pursuant to this Agreement and the Standards shall, as between originating and receiving parties, have the same effect as if submitted in written form, signed by the originating party, and will constitute an “original” when printed, without modification to its content, from electronic files or electronic records established and maintained in the normal course of business. Subscriber shall make copies of source records related to Transaction Data that it originates available to the recipient for verification upon request.
4.2 Authentication. As between Subscriber and Pubnet LLC, Subscriber is solely responsible for proper transmission and receipt of Transaction Data, for implementing sufficient procedures and checkpoints to satisfy its particular requirements for the accuracy of data transmitted and received, and for maintaining a means external to PUBNET® for the reconstruction of any lost data. Subscriber shall promptly correct all errors discovered in Transaction Data it transmits. If any Transaction Data received by Subscriber is in an unintelligible or garbled form, Subscriber will promptly notify the originating party if identifiable from the received communication. Pubnet LLC shall provide the support described in Article 1.2 to assist Subscriber in fulfilling its obligations hereunder.
4.3 Other Agreements. This Agreement does not establish a contractual relationship among subscribers, except to the extent that each Subscriber is a beneficiary of Article 4.1. Notwithstanding anything to the contrary, Subscriber acknowledges that any Transaction Data submitted or received by Subscriber is also subject to the terms and conditions of all relevant agreements now or hereafter existing between Subscriber and its Trading Partners, as applicable. Subscriber expressly waives any rights to bring an action declaring the invalidity of a transaction concluded between it and a Trading Partner on the sole ground that the transaction took place by use of PUBNET®. In the event of a conflict, the terms of this Agreement shall govern the submission, receipt and effectiveness of Transaction Data on PUBNET®.
ARTICLE 5 SECURITY
5.1 Procedures. Each party shall use those security procedures, including any specified in the Standards, which it deems reasonably sufficient to ensure that all PUBNET® access, Transaction Data transmissions and other uses of Services are authorized, and to protect its Confidential Information (defined in Article 6.1) from improper access or modification. Pubnet LLC shall not be liable for the interception by improper means or the theft by persons, other than Pubnet LLC employees, agents or contractors, of Transaction Data carried on PUBNET® or deposited in Subscribers’ mailboxes.
5.2 Signatures. Access to PUBNET® and use of Services requires an electronic identification consisting of a user ID and password, which are to be affixed to or contained in any Transaction Data, transmitted by Subscriber (“Signatures”). SUBSCRIBER IS RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY, AND CONTROLLOING THE USE, OF ITS USER ID AND PASSWORD. Recipients of Transaction Data shall maintain the confidentiality of the Signatures of other Subscribers affixed or contained in such Transaction Data.
ARTICLE 6 CONFIDENTIALITY
6.1 Definition. “Confidential Information” means (a) information designated as “confidential” or “proprietary,” (b) or that which should have been known to be “confidential” or “proprietary” from the nature of the information or the circumstances of its disclosure, including but not limited to, licensing strategies, business plans, and product ideas, and (c) trade secrets, including without limitation, any plans, applications, systems and strategies, which are subject to an obligation of confidentiality or nondisclosure as a matter of law, and the terms and conditions of this Agreement.
6.2 Obligation. Pubnet LLC shall keep in confidence, and will not disclose without Subscriber’s consent, Confidential Information received from Subscriber, other than to employees, agents and contractors with a need to know. Pubnet LLC shall exercise reasonable care to prevent improper disclosure of Confidential Information, and to ensure that its employees, agents and contractors shall also comply with the provisions of this Article 6. Subscriber shall be entitled to an injunction prohibiting the improper disclosure of Confidential Information, actual or threatened, and to the specific enforcement of Pubnet LLC’s obligations hereunder, in addition to every other remedy now or hereafter available to Subscriber in law or equity.
6.3 Scope. This Article 6 states Pubnet LLC’s obligations with respect to Subscriber’s Confidential Information. It does not apply to obligations of confidentiality between subscribers, or affect any agreements among subscribers and their Trading Partners relating to Confidential Information. Confidential Information does not include information which (a) was in Pubnet LLC’s possession before it was obtained from Subscriber; (b) is or becomes a matter of general public knowledge obtained through no fault of Pubnet LLC; (c) is developed independently by or on behalf of Pubnet LLC; or (d) is lawfully received by Pubnet LLC from a source other than Subscriber. Neither the transmission or re-transmission of Transaction Data as provided in this Agreement nor the disclosure of Confidential Information in response to a court order or other legal requirement is a prohibited disclosure, provided, however, that if Pubnet LLC is legally compelled to disclose Subscriber’s Confidential Information, Pubnet LLC shall promptly notify Subscriber of such request or legal process. As between Subscriber and Pubnet LLC, Pubnet LLC asserts no ownership or proprietary rights in the Transaction Data.
ARTICLE 7 CONTRACTORS
Pubnet LLC may perform its obligations under this Agreement directly or through contractors. Pubnet LLC shall cause its contractors to comply with the obligations with respect to the contents of Transaction Data stated in Articles 1.3 and 6. Notwithstanding that Pubnet LLC may contract certain PUBNET® communication and support services, Pubnet LLC shall remain primarily responsible for the performance of such Services. If Pubnet LLC breaches its agreement(s) with its network services provider, or ceases to do business, such contractor may assume this Agreement, continue to provide access to Pubnet® and Services and enforce this agreement against Subscriber, having the same rights and obligations as Pubnet LLC under this Agreement. The network provider shall notify Subscriber of such assumption, and Subscriber shall thereafter look to the network provider for PUBNET® access and Services. The network provider shall not be liable to Subscriber for any obligations or liabilities of Pubnet LLC arising prior to such assumption, nor shall Subscriber be liable to such provider for Subscriber’s obligations or liabilities arising prior to such assumption.
ARTICLE 8 WARRANTY; DISCLAIMER OF WARRANTY
Limited Warranty and Disclaimer of Other Warranties. Pubnet LLC warrants that it will use its best efforts to correctly transmit Transaction Data to the designated recipient in a timely manner. PUBNET LLC MAKES NO OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE SERVICES OR RESOURCES PROVIDED BY IT, TRANSACTION DATA TRANSMITTED ON PUBNET®, OR USE OF SERVICES NOT COMPLYING WITH APPLICABLE STANDARDS. PUBNET LLC DISCLAIMS LIABILITY FOR THE CONTENT AND USE OF TRANSACTION DATA. Pubnet LLC does not warrant uninterrupted or error-free operation, compatibility with any particular hardware or software, or interconnectability with other networks or services.
ARTICLE 9 LIMITATION OF LIABILITY
Regardless of whether any remedy set forth herein fails in its essential purpose or otherwise, neither Subscriber or Pubnet LLC will be liable to the other for lost profits or data, or any special, incidental, indirect, exemplary or consequential damages arising from or as a result of any delay, omission, or error in the transmission or receipt of any Transaction Data or use of other Services, even if advised in advance of the possibility of such damages.
ARTICLE 10 INDEMNIFICATION
10.1 By Pubnet LLC. Pubnet LLC shall defend Subscriber against claims that the use of Services by Subscriber infringes any patents, copyrights, or trademarks, or is a misappropriation of trade secrets, and pay (a) all costs, damages, and attorneys’ fees awarded against Subscriber as a result of such claim, or (b) any settlement of such claim, provided that Subscriber notifies Pubnet LLC in writing promptly upon discovery of such claim, and gives Pubnet LLC complete authority and control of, and fully cooperates with Pubnet LLC in, the defense and settlement of such claim. Pubnet LLC shall have no liability or obligation for claims based on (i) use of Services not in compliance with applicable Standards, and (ii) the content of Transaction Data. THIS ARTICLE 10 STATES PUBNET LLC’S ENTIRE OBLIGATION FOR BREACH OF THE FOREGOING NONINFRINGEMENT WARRANTY.
10.2 By Subscriber. Subscriber agrees to indemnify, defend, and hold harmless Pubnet LLC, its employees, directors, agents and contractors for, from and against all damages and costs, including reasonable attorneys’ fees, that result from the claims of third parties arising out of Subscriber’s use of Pubnet® and Services, including the content and use of Transaction Data, provided that Pubnet LLC notifies Subscriber in writing promptly upon discovery of any such third party claim, and gives Subscriber complete authority and control of, and fully cooperates with Subscriber in, the defense and settlement of such claim. For the purposes of this Article 10.2, Subscriber’s “use” of Pubnet® and Services (a) means (i) use by Subscriber’s employees, agents and contractors who have obtained Subscriber’s Signatures in their employment or engagement; (ii) use by Subscriber’s employees, agents and contractors following their separation from employment or engagement by Subscriber enabled by the use of Signatures obtained in their employment or engagement; (iii) use by any person who obtains Subscriber’s Signatures because of Subscriber’s negligence; (iv) and use by any person who obtains Subscriber’s Signatures from any person described in (i), (ii) or (iii) above, and (b) specifically excludes the unauthorized use of Subscriber’s Pubnet® account by any person not described in (i) through (iv) above who “hacks” or “cracks” Subscriber’s Signature.
ARTICLE 11 LIMITATION OF ACTION
No action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of action has arisen, or in the area of nonpayment, more than two years from the date of last payment.
ARTICLE 12 TERMINATION
12.1 By Either Party. This Agreement shall remain in effect until terminated by either party with not less than 30 days’ prior written notice to the other party.
12.2 By Pubnet LLC for Cause. Pubnet LLC may terminate this Agreement (a) if Subscriber fails to comply with any of its material terms or conditions, and fails to cure such non-compliance within 60 days’ of notice, or (b) if Subscriber uses or attempts to use Pubnet® or Services for any fraudulent or illegal purpose, or in any manner contrary to the terms of this Agreement or the Standards. Pubnet LLC may, without prior notice, immediately suspend Subscriber’s access to Pubnet® and Services, with or without terminating this Agreement, (i) so long as any payment from Subscriber not being contested in good faith is past due, or (ii) if Subscriber uses or attempts to use Pubnet® or Services for any fraudulent or illegal purpose, or in any manner contrary to the Standards. Any Subscriber so suspended shall be required to pay, as applicable, the reconnect fee, if any.
12.3 Obligations on Termination. The effective date of termination shall be the date on which Subscriber ceases to use PUBNET and Services or 60 days following notice of termination, whichever occurs first. Subscriber shall, within 30 days of the effective date of termination, turn over to Pubnet LLC or, if agreed to by Pubnet LLC, certify the destruction of, all property belonging to or provided by Pubnet LLC.
ARTICLE 13 GENERAL PROVISIONS
13.1 Jurisdiction. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New Jersey without giving effect to its conflict of laws. The parties hereby consent to the jurisdiction of the state and federal courts located in the State of New Jersey.
13.2 Force Majeure. No party shall be liable for any failure to perform its obligations hereunder, where such failure results from an act of God, or other cause beyond such party’s reasonable control, including without limitation, any mechanical, electronic or communications failure.
13.3 Ownership. Subscriber has no rights of ownership or other property rights in any Standards, Services or other materials furnished by Pubnet LLC in connection with this Agreement.
13.4 Severability. If any provision hereof or the application thereof to any circumstance shall, in any jurisdiction and to any extent, be invalid or unenforceable, such provision shall be ineffective as to such jurisdiction to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable any remaining provisions hereof or the application of such provision to circumstances other than those as to which it is held invalid or unenforceable.
13.5 Headings. The headings are for convenience and shall not affect the construction or interpretation of any provisions of this Agreement.
13.6 Assignment. Neither Pubnet LLC nor Subscriber may transfer or assign its rights or obligations under this Agreement without the prior written consent of the other, except for a transfer or assignment to a parent, subsidiary, or affiliate, or an entity with which it is merged or consolidated, or the purchase of all or substantially all of its assets, provided such purchaser assumes all its obligations under this Agreement.
13.7 Survival. The provisions of Articles 6, 9, 10, 11, and 13 shall survive the termination of this Agreement.
13.8 Party Rights. Except as specifically provided, nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties hereto and their respective successors and assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third parties to any party to this Agreement, nor shall any provision give any third party any right of subrogation or action against any party to this Agreement.
13.9 Notice. Except as otherwise provided herein, all notices required to be given pursuant to this Agreement shall be in writing and shall be sent by United States certified mail, return receipt requested, postage prepaid, to the address of the other party which is set forth in this Agreement, or to such other addresses as the party shall designate in writing. Any notice will be deemed to be effective upon delivery. Notice may be waived by mutual written consent of the parties.
SCHEDULE A
SERVICES AND FEES
FEES
Please check here if this Schedule amends a previous Schedule A to the Agreement dated .
The parties hereto certify that they are fully authorized to sign this Schedule A to this Agreement and made a part hereof, and legally bind their organizations to its terms, and have executed this Schedule A on the date written below.
After filling out this form, please print it, sign it and fax it to 1-908-219-0195.
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V.2. June 2003
