Master Subscription Agreement

Effective: May 27, 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.

Unless you have an executed Master Subscription Agreement or similar, 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 Services provided by Firework. If you have an executed Master Subscription Agreement or similar agreement with Firework, your Master Subscription Agreement will govern.

On the first instance that you perform any of the following acts (“Method of Acceptance”), you are entering into a legally binding contract with Firework (or its Affiliates) and hereby accept the terms of the Agreement: (a) checking a box that indicates your acceptance; (b) executing or otherwise entering into an Order Form governed by these Terms; (c) accessing or using any Services after being notified that these Terms apply to such Services or to such access or use; or (d) otherwise signifying your acceptance through any other method as may be designated for such purpose. The Firework entity you are contracting with will be listed on the Method of Acceptance. For purposes of these Terms, Firework and its Affiliates are collectively referred to as “Firework” but you are only entering into the Terms with the applicable Firework entity as a two-party agreement between you and that applicable Firework entity.

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. If you do not have such authority, or if you do not agree with these Terms, you must not accept this Agreement and may not use the Services.

1. Access to Services
   1.1. By accessing the Services, you agree to be bound by: (a) these Terms; (b) any Supplemental Terms terms applicable to the products and services listed on the Order Form; and (c) any Order Form signed by you and Firework, including any additional terms listed on the Order Form (collectively, the “Agreement”).
   1.2. You may be required to create an account and sub-accounts to use the Services, or such account may be created for you. You are responsible for setting and revoking the access levels for your accounts, for providing and updating any information that Firework reasonably requests, for maintaining the account, and for all activity that occurs in your accounts. If you are authorized to access a third-party account, you must comply with these Terms when you access that party’s account.
   1.3. From time to time, Firework may make Beta Services available to you. You may choose to try such Beta Services, or not, in your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of: (a) one year from the trial start date; or (b) the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available.
   1.4. If Firework makes available a Free Service to you, Firework will make such Free Service available to you, free of charge, until the earlier of: (a) the end of the period during which Firework agreed to make such Free Service available to you; (b) the start date of any Firework Services or license with respect thereto purchased by you that are the same as the Free Services; or (c) termination by Firework of the Free Service with respect to you in Firework’s sole discretion to the extent not precluded by any agreement between you and Firework.
   1.5. Free Services and Beta Services are not considered “Services” under this Agreement for purposes of any representations, warranties or covenants of Firework; provided, however, all representations, warranties, covenants, restrictions and obligations of Customer under this Agreement shall apply to Beta Services and Free Services. Notwithstanding anything to the contrary in this Agreement, a Beta Service or Free Service is provided “AS IS.” FIREWORK AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A BETA SERVICE OR FREE SERVICE. FIREWORK AND ITS AFFILIATES SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO BETA SERVICES OR FREE SERVICES, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE FIREWORK’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO BETA SERVICES AND FREE SERVICES IS $500 USD. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 9  OF THE TERMS (LIMITATION OF LIABILITY), CUSTOMER WILL BE FULLY LIABLE, WITHOUT ANY LIMITATIONS OR EXCLUSIONS, FOR ANY DAMAGES IN CONNECTION WITH A FREE SERVICE OR BETA SERVICE.
2. Restrictions
   2.1. You shall use the 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 Services or otherwise transfer, or encumber rights to the Services, or any part thereof; (b) send or store in the 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 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 Services, or any products or services provided by a third party in connection with the Services; (e) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or the data contained therein; (f) modify, copy, reverse engineer, or create derivative works based on the Services, or any portion thereof; (g) access the 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 Services the name of Firework and any copyright or other notices appearing in or on the 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 Services with software offered under an open-source license that creates obligations with respect to the 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 Services; or (k) impose an unreasonable or disproportionately large load on the Services or circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Services.
   2.2. You agree that you will only use the Services, and you will ensure that your End-Users use the 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 Services, without notice or liability.
   2.3. 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 Services. Customer is responsible to review and approve any Content prior to publicly displaying it through the 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.
3. Ownership & Feedback
   3.1. 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 and Firework and its licensors retain all right, title, and interest in and to the Services, Firework Content, Documentation, including all related intellectual property rights inherent therein and derivative works created from them or using them.
   3.2. Firework shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any Feedback you provide. Firework shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.
4. Representations and Warranties
   4.1. 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.
   4.2. General. Additionally, you represent and warrant that: (a) you have the full power and rights to perform your obligations under the Agreement; (b) you will comply with all applicable laws and the Agreement, including, for clarification, any applicable Supplemental Terms, Policies, and terms listed on any applicable Order Form, when using the Services; (c) you are an entity validly existing and in good standing under the laws of your jurisdiction of incorporation or organization; (d) all information provided by you via the Services is complete and accurate in all material respects; (e) all Content you approve or make available using the 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; (f) you are responsible for including any legally-required disclosure in the Content you approve or make available via the Services; and (g) 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.
   4.3. 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 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.
   4.4. Agency. If you are using the Services as agent for another individual or entity, then you represent and warrant that: (a) you are authorized to, and do, bind that individual or entity to the Agreement; and (b) all of your actions in connection with the Agreement are and will be within the scope of the agency relationship between you and that individual or entity, and in accordance with any applicable legal and fiduciary duties. If you are using the Services as principal in connection with services you provide to another individual or entity, then you represent and warrant that you will procure that such individual or entity will comply with, and you will remain primarily liable for any obligations ascribed to that individual or entity under the Agreement.
5.  Confidentiality
   5.1. Each party or its Affiliates (collectively, “Recipient”) may, during the course of its provision and use of the 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.
   5.2. 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.
6. Fees and Payment
   6.1. You will pay Firework the Fees set forth in the Services or applicable Order Form. Fees are due within thirty (30) days from receipt of invoice.
   6.2. 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.
   6.3. If your payment method fails or an invoice becomes past due, Firework may: (a) suspend the Service upon thirty (30) days written notice, until such amounts are paid in full; (b) take steps to collect past due amounts using collection mechanisms it deems appropriate and you will pay all reasonable costs and expenses (including any reasonable attorneys’ fees) Firework incurs in collecting any late payment;  (c) terminate any current or future purchase; and (d) charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due, however, Firework will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and you are cooperating diligently to resolve the issue.
7. Indemnification
   7.1. 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 Services; (c) the actions of each individual with access to your accounts related to the Services.
   7.2. 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 7.1(a)-(c) above.
   7.3. 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.
8. Termination.  These Terms remain in effect until your use of the Services ends, whether by your termination of an Order Form or your request to delete your account. Firework may terminate these Terms and modify, suspend, terminate access to, or discontinue the availability of the 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), 5 (Confidentiality), 7 (Indemnification), 8 (Termination), 9 (Governing Law & Disputes), 10 (Limitation of Liability), and 13 (General & Definitions).
9. Governing Law & Disputes
   9.1. 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.
   9.2. Information 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.
   9.3. 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.
   9.4. 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.
   9.5. 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.
10. Limitation of Liability
    10.1. EXCEPT FOR “EXCLUDED CLAIMS” IN NO EVENT WILL EITHER PARTY 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. “EXCLUDED CLAIMS” MEANS CLAIMS BASED ON: (X) A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS (BUT DOES NOT INCLUDE OBLIGATIONS AND CLAIMS RELATING TO DATA PROTECTION);  (Y) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS; AND (Z) LIABILITY WHICH, BY LAW, CANNOT BE LIMITED.
    10.2. EXCEPT FOR “EXCLUDED CLAIMS” IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY 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. (“GENERAL LIABILITY CAP”)
    10.3. IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED TWO TIMES THE AMOUNT ACTUALLY PAID TO FIREWORK IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) TO WHICH SUCH LIABILITY RELATES (“DATA PROTECTION CLAIMS CAP”). “DATA PROTECTION CLAIMS” MEANS ANY CLAIMS ARISING FROM A PARTY’S BREACH OF DATA PRIVACY, SECURITY, OR CONFIDENTIALITY, WHERE SUCH BREACH RESULTS IN THE UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA, OR ANY BREACH OF USE OBLIGATIONS.
    10.4. IN NO EVENT SHALL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP. SIMILARLY, THOSE CAPS SHALL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE DATA PROTECTION CLAIMS CAP.
    10.5. THE PARTIES AGREE THAT THE LIMITATIONS IN THIS SECTION 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.
    10.6. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION 10 APPLY ON AN AGGREGATED BASIS, ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE TERMS OR ORDER FORMS GOVERNING YOUR USE OF THE SERVICES ENTERED INTO BETWEEN FIREWORK (AND ITS AFFILIATES) AND ANY CUSTOMER AFFILIATES.
11. Notices
    11.1. 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 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.
    11.2. Any notices provided by you under this Agreement, including those regarding modifications to this Agreement, will be given via email to legal@fireworkhq.com.
12. Supplemental Terms
    • “Subscription Services Terms” located at https://fwmarketingprd.wpenginepowered.com/legal/subscription-service-terms/ – apply to your use of any SaaS provided by Firework or its Affiliates
    • “Third Party Payment Processing Terms” located at https://fwmarketingprd.wpenginepowered.com/legal/thirdparty-payment-processing-terms.
      
    • “Terms for Customers of Authorized Third Parties” located at https://fwmarketingprd.wpenginepowered.com/supplemental-third-party-customer-terms/ apply if you ordered Services directly or indirectly through an Authorized Third Party (as defined in such Supplemental Terms), and not directly from Firework.
13. General & Definitions
    13.1. 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.
    13.2. 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.
    13.3. Entire Agreement and Order of Precedence. This Agreement together with any Exhibits hereto and 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 among the following documents, the order of precedence shall be: (1) the applicable Order Form but only with respect to that Order Form; (2) the applicable Supplemental Terms (if any) but only with respect to the Service provided under those Supplemental Terms; and (3) these Terms.
    13.4. 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.
    13.5. Third-Party Beneficiaries. Other than as expressly provided under this Agreement there are no third-party beneficiaries under this Agreement.
    13.6. 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.
    13.7. 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.
    13.8. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
    13.9. 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.
    13.10. Amendments. Firework may amend, modify or supersede the Agreement, including the Supplemental Terms, at any time by posting the amended, modified or superseding terms on https://fwmarketingprd.wpenginepowered.com/legal/master_services_agreement, and/or applicable URLs for any Supplemental Terms, 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.
    13.11. Changes to 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 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 Services; (3) update the content, features, functionality, and user interface of the Service from time to time in its sole discretion.
    13.12. 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://fwmarketingprd.wpenginepowered.com/legal/dmca for how to notify Firework.
    13.13. 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.”
    13.14. 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 Services, or via another method Firework reasonably selects. You agree to be bound by those updates if you access or use the 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.
    13.15. 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.
    13.16. 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 or Supplemental Terms.
    • “Beta Services” means a Firework service or functionality that may be made available to you to try at your option at no additional charge that is clearly designated as beta, pilot, limited release, early adoption, non-production, sandbox, evaluation or a similar description.
    • “Boutir Platform” means the website, mobile application, or other platform owned by Firework, which enables merchants to create online stores for the purpose of offering products or services to consumers.
    • “Content” means the video, streaming and related content available to Customer through the Services. “Customer Content” means any Content uploaded or provided by Customer to the Services. “Firework Content” means the Content excluding the Customer Content.
    • “Creative Services” means Firework or its Affiliates: (a) providing consultation for your campaigns; (b) producing, converting, or editing any creative materials, videos, or livestreams for you; (c) monitoring or managing any of your livestreams; or (d) enlisting any talent for your campaigns, videos, livestreams or off-platform promotion thereof; or (e) providing any other products or services for your campaigns, videos, livestreams or off-platform promotion thereof.
    • “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 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 Services.
    • “Fees” means the costs due to Firework or its Affiliates for 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.
    • “Firework Marks” means the names, logos, trademarks, or other intellectual property of Firework or its Affiliates, including “Firework” and “Boutir.”
    • “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 Services.
    • “Order Form” means an order for Services mutually agreed between the parties (via a written order form, online signup page or otherwise) that specifies the 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.
    • “Services” means any services provided by Firework or its Affiliates under these Terms.
    • “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. Subscription Services excludes (i) Non-Firework Applications, (ii) the Boutir Platform, and (ii) Third party payment processing services .
    • “Supplemental Terms” mean all other additional terms, guidelines, and policies which govern your use of the Services, including those set forth in the Supplemental Terms Section.
    • “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.
    • “Term” means the Initial Term plus all Renewal Terms as detailed in Section 8.