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Master Services Agreement – Shopify

Effective: April 22, 2024

ARBITRATION NOTICE: YOU ARE BOUND BY THE ARBITRATION PROVISION SET FORTH LATER IN THIS MASTER SERVICES AGREEMENT. IF YOU ARE CONTRACTING WITH LOOP NOW TECHNOLOGIES, INC. THEN YOU AND LOOP NOW TECHNOLOGIES, INC. WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

This Master Services Agreement (“Terms”), along with any applicable terms that are incorporated herein by reference, constitute a legally binding agreement between Loop Now Technologies, Inc. (“Firework”) and the counterparty agreeing to these Terms (“you”), and govern your use of Subscription Services provided by Firework. If you are entering into or accepting this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement as amended from time to time. 

  1. Access to Subscription Services
    1. By accessing the Subscription Services, you agree to be bound by: (a) these Terms; (b) any Supplemental Terms applicable to the products and services listed on the Order Form; and (c) the Order Form (collectively, the “Agreement”). 
  2. Firework shall make the Subscription Services available to you pursuant to these Subscription Service Terms and all Order Forms, and grants to you (hereafter “Customer” or “you”) and your Authorized Users a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to access and use the Subscription Services, solely for your business purposes (including making such Service available to End-Users). For any Subscription Services enabling embedding or creating Content: (a) You may access and use such service for the purposes of streaming such Content on your owned and operated sites (for clarity, the Content remains hosted by Firework). 
  3. Customer’s Obligations
    1. You shall use the Subscription Services in compliance with all applicable laws and shall not: (a) without Firework’s express prior written approval, copy, rent, sell, resell, lease, distribute, pledge, assign, transfer, license, sublicense, syndicate, lend, or provide access to the Subscription Services or otherwise transfer, or encumber rights to the Subscription Services, or any part thereof; (b) send or store in the Subscription Services any personal health data, credit card data, personal financial data or other such sensitive data without proper lawful license or permission to do so; (c) send or store infringing or unlawful material in connection with the Subscription Services; (d) transmit, send, or store any viruses, worms, time bombs, Trojan horses, back door, drop dead device, spyware, malware, and other harmful or malicious code, files, scripts, agents or programs, or any computer code or software routine, which permits unauthorized access to, disables, damages, erases, disrupts, or impairs the normal operation of, or use of the Subscription Services, or any products or services provided by a third party in connection with the Subscription Services; (e) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Subscription Services or the data contained therein; (f) modify, copy, reverse engineer, or create derivative works based on the Subscription Services, or any portion thereof; (g) access the Subscription Services for the purpose of building a competitive product or service or copying its features or user interface; (h) delete, alter, add to or fail to reproduce in and on the Subscription Services the name of Firework and any copyright or other notices appearing in or on the Subscription Services or which may be required by Firework at any time;  (i) display the Firework Content on any sites other than sites that are owned and operated by you; (j) use or combine the Subscription Services with software offered under an open-source license that creates obligations with respect to the Subscription Services contrary to these Terms, or purports to grant to any third party any rights to, or immunities under, Firework’s intellectual property or proprietary rights in the Subscription Services; or (k) impose an unreasonable or disproportionately large load on the Subscription Services or circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Subscription Services. 
    2. You agree that you will ensure that your End-Users use the Subscription Services, in a way that: (a) complies with applicable laws and does not promote, encourage or facilitate any illegal activity, or violating the law or the rights of any third party (including, without limitation, Intellectual Property Rights, rights of privacy, or rights of personality or publicity); (b) does not support or encourage terrorism, organized crime, or groups that promote hate; (c) does not transmit sexually explicit, illegal, dangerous, gratuitously violent, harassing, defamatory, or threatening or content or activity, including content or activity that a reasonable person would find objectionable; (d) does not promote sexual services, firearms, or drugs (both illegal and/or prescription)(unless expressly permitted on an Order Form); (e) does not allow or promote  illegal gambling, illegal games of chance, illegal sweepstakes or illegal contests; (f) does not contain threats or hate speech; (g) does not target private individuals to harm, bully or shame them; (h) does not contain personal information without consent where legally required; and/or (i) does not encourage violence or attacks on anyone based on that individual’s race, ethnicity, national origin, sex, gender, gender identity, sexual orientation, religious affiliation, disabilities, or diseases.  If Firework believes you or one of your End-Users have violated this Agreement, Firework reserves the right to remove Customer Content and/or remove your access to the Subscription Services, without notice or liability. 
    3. For any Firework Content, you agree to abide by any restrictions placed on the Content by Firework. Any license to the Firework Content is expressly limited to the territory, media, and time limitations communicated to you by Firework or its Affiliates. Firework does not guarantee the accuracy of the information and description of the Content displayed on, or generated using, the Subscription Services. Customer is responsible to review and approve any Content prior to publicly displaying it through the Subscription Services. Firework and its Affiliates disclaim any and all liability for any errors or other inaccuracies relating to the Content except to the extent such errors are caused by a grossly negligent act of Firework. Firework reserves the right to add, modify or remove any Firework Content in its sole discretion at any time.
    4. Customer acknowledges and agrees that Customer’s and its Authorized Users’ and End-Users’ use of the Subscription Services is dependent upon access to telecommunications and Internet services. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Firework shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
  4. Ownership & Feedback 
    1. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. For clarity, Customer retains all right, title and interest in the Customer Content, Authorized User Data and End-User data and Firework and its licensors retain all right, title, and interest in and to the Subscription Services, Firework Content, Documentation, including all related intellectual property rights inherent therein and derivative works created from them or using them.  Customer grants to Firework, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Authorized User Data, as reasonably necessary for Firework to provide the Subscription Services in accordance with this Agreement, and represents that it has the authority to grant such license.
    2. Firework and its Affiliates own all Usage Data. Nothing herein shall be construed as prohibiting Firework or its Affiliates from utilizing the Usage Data to optimize and improve the Subscription Services or otherwise operate Firework’s or its Affiliates’ businesses; provided that if Firework or its Affiliates provides Usage Data to third parties, such Usage Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Authorized User(s) or End Users to any third party. Firework agrees to provide aggregated Usage Data to Customer for the Content displayed hereunder on Customer’s owned and operated sites.
    3. By placing Customer Content on the Subscription Services, you grant to Firework and its Affiliates a non-exclusive, non-transferable (except as provided herein), sublicensable, irrevocable, worldwide, royalty-free, license to use, archive, copy, cache, encode, record, store, reproduce, distribute, transmit, broadcast, adapt, modify, publish, promote, exhibit, synchronize, communicate to the public, make available, publicly display, and publicly perform the content you approve or make available via the Subscription Services as set forth in these Terms. To the extent permissible under applicable law, you irrevocably waive any moral rights or equivalent rights you may have in the content you approve or make available via Services throughout the world. To the extent a waiver is not permitted, you agree not to assert any such rights against Firework and its Affiliates.
    4. Firework shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Subscription Services any Feedback you provide. Firework shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.  Any intellectual property developed based on Customer Feedback shall be owned solely by Firework.
  5. Representations and Warranties
    1. Compliance. You represent and warrant that you, any individual with access to your accounts, and any entity that owns, controls, or is otherwise affiliated with you: (a) will comply with all applicable export control, economic sanctions, and anti-boycott laws, rules, and regulations of the United States and other countries; (b) are not included on any of, or owned or controlled by anyone on, any Restricted Party Lists; (c) will not do business with or provide goods or services, directly or indirectly, to anyone on the Restricted Party Lists or to any country or territory subject to comprehensive U.S. sanctions; and (d) are not subject to end destination export control regulations, including the United States Export Administration Regulations.
    2. Content. (a) Content you approve or make available using the Subscription Services complies with these Terms and applicable law, does not infringe upon or misappropriate any intellectual property rights, and you have all necessary licenses, rights, permissions, and clearances (including from any third parties) to use, and for Firework and its Affiliates to use and create derivative works from, that Content, and to grant Firework and its Affiliates all licenses described in the Agreement; (b) you are responsible for including any legally-required disclosure in the Content you approve or make available via the Services; and (c) if the Content you make available via the Services includes musical sound recordings or compositions, then you have obtained all necessary rights, licenses, and permissions, and have paid all required fees and royalties, for those musical sound recordings and compositions to be replayed, synchronized, and publicly performed on the Services and anywhere the Services may be accessible.  Firework may remove any Content it reasonably believes violates these Terms.
    3. Personal Data. Additionally, for any Customer Content or any other personal data you pass to Firework, you represent and warrant that: (a) you are not passing any personal data of End-Users under the age of 13 (or the age of consent under applicable privacy law in the relevant jurisdiction, if such age is higher than 13) unless you have obtained sufficiently broad consent specifically to pass such personal data to Firework; (b) you will comply with applicable laws and applicable self-regulatory standards, frameworks, and guidelines; (c) you are not passing any Sensitive Information to Firework; (d) you have secured, and will maintain, all necessary rights, licenses, consents, and authorizations required to send the personal data and for the personal data to be used in accordance with these Terms, including consents from all applicable data subjects; (e) you will provide sufficient notice to each data subject in compliance with applicable law, applicable self-regulatory standards, frameworks, and guidelines that the data subject’s information collected by you or your agents may be shared with and used by third parties for the purposes specified under these Terms, including, at a minimum, a clear and prominent notice about how and where users may approve or opt-out of the use of their personal data, if required by applicable law; (f) in jurisdictions that require consent for storing and accessing cookies or other information of a data subject (including the European Union), you must ensure, in a verifiable manner, that each data subject provides you with the necessary consent before you use the Subscription Services to send personal data in connection with that data subject; and (g) you will promptly notify Firework of: (i) any instructions pertaining to a data subject request, (ii) the exercise of any data subject right under applicable law, and (iii) any actual or threatened complaint, cause of action, lawsuit, or regulatory inquiry relating to personal data, and you will reasonably cooperate with Firework, at your expense, in responding or defending against any such complaint.
  6. Warranties and Disclaimer.
    1. Customer Use and Data. Firework and its Affiliates shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Firework by Customer or by any Authorized User in connection with the Subscription Services. Firework expressly disclaims any and all liability in connection with Authorized User Data. Firework is under no obligation to edit or control Authorized User Data that Customer imports to the Subscription Services. Firework may, at any time without prior notice, remove any Authorized User Data that violates this Agreement or applicable law, or which violates the rights of a third party or Firework.
    2. If any output from the Subscription Services is not human-generated, you represent and warrant that you will not represent to End-Users or anyone that the output was generated by a human. You and your End Users are responsible for all decisions made, advice given, actions taken, and failures to take action based on your use of AI Services. AI Services use machine learning models that generate predictions based on patterns in data. Output generated by a machine learning model is probabilistic and should be evaluated for accuracy as appropriate for your use case, including by employing human review of such output.
    3. Third Party Services. Some of the Subscription Services may integrate with third-party software to provide additional functionalities. Firework is not responsible for any issues and/or direct or indirect losses arising from the use of any third-party software. Customer’s access and use of the third-party software is governed by the terms of service and/or the user agreements of the applicable software.
    4. The Firework platform is not intended to be a failsafe data warehouse or data back-up solution. In the event of any loss or corruption of Authorized User Data, Firework shall use its commercially reasonable efforts to restore the lost or corrupted Authorized User Data from the latest backup of such Authorized User Data maintained by Firework; You acknowledges that full restoration of Authorized User Data may not be possible under all circumstances.
    5. General Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN THESE SUBSCRIPTION SERVICE TERMS, SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND TO THE EXTENT PERMITTED BY LAW. FIREWORK, ITS AFFILIATES AND THEIR SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE SUBSCRIPTION SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION 5.1. FIREWORK AND ITS AFFILIATES MAKE NO WARRANTY REGARDING ANY NON-FIREWORK APPLICATION WITH WHICH THE SUBSCRIPTION SERVICES MAY INTEROPERATE. IN ADDITION, WHILE WE ATTEMPT TO PROVIDE A GOOD USER EXPERIENCE, WE DO NOT REPRESENT OR WARRANT THAT: (A) THE SUBSCRIPTION SERVICES WILL ALWAYS BE SECURE, ERROR-FREE, OR TIMELY; (B) THE SUBSCRIPTION SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS; OR (C) THAT ANY CONTENT, USER CONTENT, OR INFORMATION YOU OBTAIN ON OR THROUGH THE SERVICES WILL BE TIMELY OR ACCURATE.
    6. NEITHER WE NOR OUR AFFILIATES TAKE RESPONSIBILITY OR ASSUME LIABILITY FOR ANY CONTENT THAT YOU, AN AUTHORIZED USER, AN END-USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH WE OR OUR AFFILIATES WILL BE RESPONSIBLE FOR.
  7. Confidentiality. 
    1. Each party or its Affiliates (collectively, “Recipient”) may, during the course of its provision and use of the Subscription Services hereunder, receive, have access to, and acquire information from the other party or its Affiliates (collectively, “Discloser”) which may not be accessible or known to the general public, such as technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business plans or opportunities, business strategies, finances, costs and vendors (“Confidential Information”). Confidential Information shall not include, and shall cease to include, as applicable, information or materials that (a) were generally known to the public on the Effective Date; (b) become generally known to the public after the Effective Date, other than as a result of the act or omission of the Recipient; (c) were rightfully known to the Recipient prior to its receipt thereof from the Discloser; (d) are or were disclosed by the Discloser generally without restriction on disclosure; (e) the Recipient lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (f) are independently developed by the Recipient as shown by documents and other competent evidence in the Recipient’s possession. 
    2. The Recipient shall not: (a) use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, except with the Discloser’s prior written permission; or (b) disclose or make the Discloser’s Confidential Information available to any party, except those of its employees, contractors, and agents (“Representatives”) that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know”in order to carry out the purpose of this Agreement. The Recipient will be responsible for any breach of this Section by any of its Representatives. Recipient agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall Recipient exercise less than reasonable care in protecting such Confidential Information. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure. 
  8. Fees and Payment
    1. By purchasing a Subscription Service, you agree to the Fees and payment method stated on your Order Form or set forth in the applicable order hosted by Firework or on a third party application marketplace.  You agree to provide Firework with complete and accurate billing information, and authorize us (and any Payment Processor) either directly, through our affiliates, or authorized third parties to charge your payment card or other payment method provided for all purchases you make, including your subscription. 
    2. Fees do not include any Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on Firework’s net income or property) unless Customer provides Firework with a valid tax exemption certificate authorized by the appropriate taxing authority.
    3. We reserve the right to modify our Fees at any time.  We will notify you of any Fee changes at least 15 days prior to the effective date of such change.  You may terminate your Subscription prior to the effective date of the change without penalty.
  9. Indemnification
    1. You hereby agree to defend the Firework Indemnified Parties against any and all claims, complaints, charges, demands, suits or proceedings brought against any Firework Indemnified Party by a third party due to, arising out of, or relating in any way to: (a) your actual or alleged breach of the Agreement, including any applicable Supplemental Terms; (b) your use of any products or services provided by a third party in connection with the Subscription Services; (c) the actions of each individual with access to your accounts related to the Subscription Services.
    2. You hereby agree to indemnify Firework Indemnified Parties for all damages, losses, costs, fines, liabilities, and expenses (including reasonable attorneys’ fees) due to or arising out of your actual or alleged actions or omissions detailed in Section 8.1(a)-(c) above.
    3. The Firework Indemnified Party will: (a) provide prompt written notice of any claim for which it intends to seek indemnity; (b) reasonably cooperate and assist in the defense or settlement, at your sole expense; and (c) at its option and sole expense, participate in the defense of any claim. You will retain sole control over the defense and settlement of the claim, provided that you may not compromise or settle any claim in any manner nor make any admissions of liability without Firework’s prior written consent.
  10. Term and Termination.  The Initial Term of your subscription is described in your Order Form.  Upon the expiration of the Initial Term (or a Renewal Term), the subscription shall automatically renew for an additional term equal to the prior term at the then current prices for the subscription tier purchased. All purchases are final and no refund will be provided by Firework for termination of a Subscription Service prior to expiration date of the then current Term.  Firework may terminate these Terms and modify, suspend, terminate access to, or discontinue the availability of the Subscription Services, at any time in its sole discretion without notice. All continuing rights and obligations under these Terms will survive termination of these Terms, including, specifically, Sections 3 (Ownership & Feedback), 6 (Confidentiality), 8 (Indemnification), 9 (Termination), 10 (Governing Law & Disputes), 11 (Limitation of Liability), and 14 (General & Definitions).
  11. Governing Law & Disputes
    1. Governing Law. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to conflict of law provisions.
    2. Informal Resolution. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through reasonable means and providing notice of the dispute. Both parties will use good faith efforts to attempt to reach a resolution. If a dispute is not resolved within thirty (30) days of notice, either party may bring a formal proceeding.
    3. Arbitration. The parties agree that any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be San Mateo County, California, or San Francisco County, California, and English will be the language used in the arbitral proceedings. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its reasonable costs and attorneys’ fees.
    4. Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity, excluding a recoupment of attorney’s fees by Customer from Firework.
    5. Venue. Either party may bring a lawsuit in the state or federal courts located in San Mateo County, California, or San Francisco County, California: (a) to enforce the arbitration provisions of this Agreement; or (b) for equitable relief as described in Section 9.4. Firework and Customer hereby consent to exclusive jurisdiction in such courts for such matters, but the parties shall also have the right to enforce any judgment arising from such lawsuit in any court of competent jurisdiction.
  12. Limitation of Liability
    1. IN NO EVENT WILL FIREWORK OR ITS AFFILIATES (OR FIREWORK’S OR ITS AFFILIATES’ THIRD PARTY LICENSORS) BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR (D) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, CUMULATIVE, MULTIPLE, OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 
    2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FIREWORK TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE-MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT WHICH THE LIABILITY AROSE.
    3. THE PARTIES AGREE THAT THE LIMITATIONS IN THIS SECTION 10 SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY, AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; BUT WILL NOT LIMIT CUSTOMER’S AND CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE ‘FEES AND PAYMENT’ SECTION ABOVE.
  13. Notices. 
      1. Any notices provided by Firework under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Subscription Services. For notices by email, the recipient shall be the e-mail address provided by Customer in the applicable Order Form, and the date of receipt will be the date on which such notice is transmitted.
      2. Any notices provided by you under this Agreement, including those regarding modifications to this Agreement, will be given via email to legal@fireworkhq.com. 
  14. Supplemental Terms
    1. “Data Processing Agreement” located at https://firework.com/legal/data-processing-agreement applies when Firework processes personal data on your behalf.
    2. “Supplemental Payment Provider Services Terms” located at https://firework.com/legal/thirdparty-payment-processing-terms applies to your use of third party payment processing services.

15.General & Definitions

    1. The parties agree that the United Nations Convention on contracts for the International Sale of Goods does not apply to any contract of sale under these Terms or any Agreement.
    2. Marketing and Public Relations. Upon the Effective Date, Firework shall have the right to (i) announce the business relationship in a corporate press release, based on publicly available information, such as that found on each party’s website, (ii) refer to and promote its business relationship on its websites and marketing materials, including the right to display Customer’s name and/or logo, and (iii) hyperlink to the Customer’s websites from Firework’s websites. In addition, Firework may at its discretion, develop Customer case studies and from time to time as reasonable, request a business referral from Customer in the form of a written statement or video testimonials.
    3. Entire Agreement and Order of Precedence. This Agreement together with the Order Form(s) constitute the entire agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning such subject matter. In the event of any conflict or inconsistency the Order Form shall take precedence. 
    4. Independent Contractors. The parties are independent contractors, and nothing in this Agreement will be construed to create an employment, joint venture, agency or other relationship between the parties.
    5. Third-Party Beneficiaries. Other than as expressly provided under this Agreement there are no third-party beneficiaries under this Agreement.
    6. No Waiver. No failure or forbearance by a party to enforce any of its rights under this Agreement or insist upon performance of the other party’s obligations under this Agreement will be deemed a waiver of such rights or obligations to any extent, and no waiver by either party of any default or breach of the Agreement will constitute a waiver of any other or subsequent default or breach.
    7. Force Majeure. Except for Customer’s payment obligations, neither party will be liable to the other under the terms of this Agreement for any delays, preemptions or other failure to perform when such delays, preemptions or failure are due to any reasonably unforeseeable cause beyond the control of the party whose performance is so affected, including, without limitation, fire, war, strike, pandemic, riot, labor dispute, terrorist act, or an act of God. In the event of any such delay, preemption or failure, the affected performing party will promptly notify the other party of the nature and anticipated length of continuance of such force majeure, and during such period the affected party will use reasonable endeavors to mitigate such delay, preemption or other failure, and both Parties will be excused from performance to the extent affected hereunder.
    8. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
    9. Assignment. This Agreement may not be assigned or transferred by a party hereto without the other party’s prior written consent except that such consent shall not be required in the event of a change in control of a party, whether through a merger, a purchase of the majority of stock, or the purchase of all or substantially all of the assets of a party. Any assignee under this provision must agree in writing to this Agreement’s provisions and may be required to enter into materially similar provisions to this Agreement.  Any attempted assignment in violation of the foregoing shall be void and without effect.
    10. Amendments. Firework may amend, modify or supersede the Agreement, at any time by posting the amended, modified or superseding terms on Firework.com, third party application marketplace, or other web pages designated by Firework. All amended, modified or superseding terms shall automatically be effective immediately when they are initially posted, except as otherwise provided in such amendment, modification or superseder. The Agreement may not otherwise be amended except in a writing signed by Firework and Customer.
    11. Changes to Subscription Services. Notwithstanding anything to the contrary, Firework and its Affiliates reserve the right to: (1) discontinue, impose limits on, or restrict access to any aspect of the Subscription Services at any time, with or without cause or notice, including the availability of any of the features, delivery services, databases, or Content; (2) edit or delete any documents, information, or other content appearing in the Subscription Services; (3) update the content, features, functionality, and user interface of the Service from time to time in its sole discretion.
    12. DMCA. If you believe that your copyrighted work has been copied and is accessible to third parties via Firework’s platform in a way that constitutes copyright infringement in the United States, please see Firework’s Digital Millennium Act (DMCA) Policy available at https://firework.com/legal/dmca for how to notify Firework.
    13. Construction. References to a Section include all its subsections. The Section headings are for convenience only and will not affect how these Terms are construed. Unless these Terms refer specifically to “business days,” all references to “days” mean calendar days. The words “include,” “includes,” and “including” mean “including without limitation.”
    14. Updates. Firework may update these Terms at any time. You agree that Firework may notify you of any such updates via email, via posting the updates on the Subscription Services, or via another method Firework reasonably selects. You agree to be bound by those updates if you access or use the Subscription Services after those updates become effective. Except as otherwise set forth in these Terms or unless expressly agreed in writing signed by Firework, nothing contained in any purchase order, insertion order, or other agreement will in any way modify, supersede, or add any additional terms or conditions to these Terms.
    15. English Language. The parties confirm that it is each party’s wish that these Terms, as well as related documents, including all notices, be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise. You acknowledge that Firework may present these Terms in a language other than English for your convenience, but that you are only agreeing to the English version of these Terms. If there is a conflict or inconsistency between these Terms in English and in any other language, the English version of these Terms governs.
    16. Definitions.

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

“Agreement” means these Terms together with any Order Form. 

“Content” means the video, streaming and related content available to Customer through the Subscription Services. “Customer Content” means any Content uploaded or provided by Customer to the Subscription Services. “Firework Content” means the Content excluding the Customer Content.

“Documentation” means Firework’s user guides and other End-User documentation for the Subscription Services made available by Firework, as may be updated by Firework from time to time.

“End-Users” means any individual, device, or household that views, is able to view, or interacts with any Content or other element provided by the Subscription Services.

“Feedback” means any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your Authorized Users relating to the features, functionality or operation of the Subscription Services.

“Fees” means the costs due to Firework or its Affiliates for Subscription Services ordered by you and provided to you. 

“Firework Indemnified Parties” means Loop Now Technologies, Inc. and its Affiliates, and each of their directors, officers, stockholders, employees, licensors, and agents. 

“Non-Firework Application” means a web-based, offline, mobile, or other software application functionality that is provided by you or a third party and interoperates with the Subscription Services.

“Order Form” means an order for Subscription Services mutually agreed between the parties (via a written order form, online signup page or otherwise) that specifies the Subscription Services purchased by Customer and provides that the Agreement applies to such order. For purposes of clarity, as used in this Agreement, a “purchase” of Subscription Services means a purchase of rights to use such Subscription Services.

“Restricted Party List” means any of the restricted party lists maintained by any relevant government authority, including the United States Specially Designated Nationals List and Other Blocked Persons, the United States State Department’s Nonproliferation Sanctions lists, the United States Commerce Department’s Entity List, or Denied Persons List.

“Sensitive Information” means any Sensitive Information or Special Category Data as defined in any applicable law, self-regulatory standards, or guidelines, and includes information regarding:  (i) an alleged or actual commission of a crime; (ii) health information; or (iii) information about users’ financial status, racial or ethnic origin, religious beliefs or preferences, sex life or sexual preferences, or trade union membership.

“Subscription Services” means: (a) the online and hosted video commerce services; (b) any Documentation and support; and (c) any and Content provided by Firework or its Affiliates. The scope of the Subscription Services purchased by Customer may be further described in the applicable Order Form. 

“Taxes” means, collectively, any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes.