Master Subscription Agreement
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This Master Subscription Agreement, along with any applicable Supplemental Terms (as defined below) that are incorporated herein by reference (collectively, the “Agreement”), constitutes a legally binding agreement as of the date that you accept it (the “Effective Date”) governing your use of the Subscription Services provided by Loop Now Technologies, Inc. (“Firework”) or its Affiliates. If you entered into an Order Form with an Affiliate of Loop Now Technologies, Inc., then such Affiliate is deemed to be Firework for purposes of this Agreement.
On the first instance that you (hereafter “Customer” or “you”) perform any of the following acts, you are entering into a legally binding contract with Firework and hereby accept the terms of the Agreement: (a) checking a box designated by Firework that indicates your acceptance, (b) executing or otherwise entering into an Order Form with Firework for Subscription Services, (c) accessing or using any Subscription Services after being notified by Firework that the Agreement applies to such Subscription Services or to such access or use, or (d) otherwise signifying your acceptance through any other method as may be designated by Firework for such purpose. 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 and its Affiliates 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 and conditions, you must not accept this Agreement and may not use the Subscription Services.
1. 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.
”Authorized User” means an employee, advisor, or agent of Customer, or other individual authorized by Customer, that has (i) been authenticated by Firework to access and use the Subscription Services, and (ii) registered to access and use the Subscription Services, on behalf of Customer.
”Authorized User Data” means data submitted by or on behalf of Customer with respect to Authorized Users to the Subscription Services (for clarity, Authorized User Data excludes Usage Data).
”Content” means the video, streaming and related content available to Customer through the Subscription Services.
“Customer Content” means the Content uploaded or provided by Customer to the Subscription Services.
”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” mean end-users who access the Subscription services via or from the Customer’s owned and operated sites and apps.
“Firework Content” means the Content excluding the Customer Content.
”Free Service” means the Subscription Services or any other Firework service or functionality to the extent Firework makes such Subscription Services, services or functionality available to Customer and its Authorized Users at no charge.
”Non-Firework Application” means a web-based, offline, mobile, or other software application functionality that is provided by Customer 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) for Subscription Services 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.
”Subscription Services” means the online and hosted services and Content provided by Firework which Customer has the right to access and use for the purposes of streaming such Content on Customer’s owned and operated sites (for clarity, the Content remains hosted by Firework). Both user video content and live streams are available via the Subscription Services. 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, and (ii) Stripe Payment Services (as defined in and subject to the Supplemental Stripe Terms).
“Supplemental Stripe Terms” mean the Supplemental Stripe Terms located at Supplemental Stripe Terms or another webpage designated by Firework (which, if Stripe, Inc. payment processing services are made available to you by Firework via the Subscription Services, are incorporated herein by reference and form an integral part hereof).
“Supplemental Terms” mean the Supplemental Stripe Terms and the Supplemental Terms for Customers of Authorized Third Parties, as applicable.
“Supplemental Terms for Customers of Authorized Third Parties” mean the Supplemental Terms for Customers of Authorized Third Parties located at Supplemental Terms For Customers of Authorized Third Parties or another webpage designated by Firework (which, if you ordered Subscription Services directly or indirectly through an Authorized Third Party (as defined in such Supplemental Terms), and not directly from Firework, are incorporated herein by reference and form an integral part hereof).
“Term” has the meaning set forth in Section 11.
“Usage Data” has the meaning set forth in Section 5.4.
2. Firework Obligations.
2.1. Firework shall make the Subscription Services available to Customer pursuant to this Agreement and all Order Forms during the Term, and grants to Customer (including its Authorized Users) a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to access and use the Subscription Services, solely for Customer’s business purposes (including making such Service available to End-Users).
2.2. 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; Customer acknowledges that full restoration of Authorized User Data may not be possible under all circumstances.
2.3. Free Services.
2.3.1. If Firework makes available a Free Service to Customer, Firework will make such Free Service available to Customer, free of charge, until the earlier of (a) the end of the period during which Firework agreed to make such Free Service available to Customer, (b) the start date of any Firework services or license with respect thereto purchased by Customer that are the same as the Free Services, or (c) termination by Firework of the Free Service with respect to Customer in Firework’s sole discretion to the extent not precluded by any agreement between Customer and Firework.
2.3.2. Free Services are not considered “Subscription Services” under this Agreement for purposes of any representations, warranties or covenants of Firework; provided, however, all representations, warranties and covenants of Customer under this Agreement shall apply to Free Services. Notwithstanding anything to the contrary in this Agreement, a 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 FREE SERVICE. FIREWORK AND ITS AFFILIATES SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO FREE SERVICES, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCABLE UNDER APPLICABLE LAW IN WHICH CASE FIREWORK’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO FREE SERVICES IS $500. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 9 (LIMITATION OF LIABILITY), CUSTOMER WILL BE FULLY LIABLE, WITHOUT ANY LIMITATIONS OR EXCLUSIONS, FOR ANY DAMAGES IN CONNECTION WITH A FREE SERVICE.
3. Customer’s Obligations.
3.1. Customer is responsible for all activities conducted under its and its Authorized Users’ logins on or accounts on the Subscription Services. Customer shall use the Subscription Services in compliance with applicable law and shall not: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Subscription Services, or any part thereof, or make it available to anyone other than its Authorized Users and End-Users; (ii) 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; (iii) send or store infringing or unlawful material in connection with the Subscription Services; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs to the Subscription Services; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Subscription Services or the data contained therein; (vi) modify, copy or create derivative works based on the Subscription Services, or any portion thereof; (vii) access the Subscription Services for the purpose of building a competitive product or service or copying its features or user interface; (viii) 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; or (ix) display the Firework Content on any sites other than sites that are owned and operated by Customer.
3.2. Any use of the Subscription Services in breach of this Agreement or Order Forms, by Customer or Authorized Users that in Firework’s judgment threatens the security, integrity or availability of the Subscription Services, may result in Firework’s immediate suspension of the Subscription Services; however, Firework will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
3.3. Customer shall ensure that all Authorized Users comply with this Agreement. Customer shall be responsible for noncompliance by Authorized Users, and for any charges incurred as a result of such actions. Customer shall promptly notify Firework of any suspected or alleged violation of this Agreement by an Authorized User or unauthorized third party and shall cooperate with Firework with respect to Firework’s resulting investigation and any actions to enforce this Agreement. Firework may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Customer in the event that Firework reasonably determines that such Authorized User has violated this Agreement or has otherwise violated applicable law. In addition, Firework may suspend or terminate any End-User’s access to the Subscription Services in the event that Firework reasonably determines that such End-User has violated the applicable terms of service or applicable law.
3.4. Customer Affiliates may purchase and use Subscription Services subject to the terms of this Agreement by executing Order Forms, and in each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes of such Order Form.
3.5. 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. Confidentiality.
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. The Recipient shall not: (i) 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 (ii) 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 4 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.
5. Ownership, Feedback and Data.
5.1. Authorized User Data. As between Firework and Customer, Customer owns the Authorized User Data. 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. Subject to the limited licenses granted herein, Firework acquires no right, title or interest from Customer in or to any Authorized User Data. Customer shall be responsible for the accuracy, quality and legality of Authorized User Data.
5.2. Firework Ownership of the Subscription Services. Except for the rights expressly granted under this Agreement, 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. 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.
5.3. Feedback. Firework shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Subscription Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Authorized Users relating to the features, functionality or operation of the Subscription Services (“Feedback”). Firework shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.
5.4. Usage Data. Firework and its Affiliates own the usage data derived from the operation of the Subscription Services, including the performance results for the Subscription Services and viewing statistics for the Content (“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 Customer or any Authorized User(s) 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.
6. Fees and Payment.
6.1. Fees. Customer shall pay Firework the fees set forth in the applicable Order Form (“Fees”) in accordance with this Agreement and the Order Form. If not otherwise specified on an Order Form, Fees will be due within thirty (30) days from the date of invoice. Except as otherwise specifically provided in this Agreement, all Fees paid and payable to Firework hereunder are non-cancelable and non-refundable. If Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law, (i) Firework reserves the right to suspend the Service upon thirty (30) days written notice, until such amounts are paid in full, and (ii) Firework will have the right to 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; provided that Firework will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.
6.2. Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “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.
7. 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.
8. Warranties and Disclaimer.
8.1. Subscription Services. Firework warrants that during the Term: (i) the Subscription Services shall perform materially in accordance with the applicable Documentation, (ii) Firework shall make commercially reasonable efforts to make the Subscription Services available to Customer 24 hours a day, 7 days a week, every day of each year (except for any unavailability caused by a Force Majeure event or for scheduled downtime); and (iii) Firework will employ industry-standard measures to test the Subscription Services to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Subscription Services. As Customer’s exclusive remedy and Firework’s entire liability for a breach of the warranties set forth in this Section 8.1, Firework shall use commercially reasonable efforts to correct the non-conforming Subscription Service at no additional charge to Customer, and in the event Firework fails to successfully correct the Subscription Service within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable Subscription Service and receive an immediate refund of any prepaid, unused Fees for the non-conforming Service. The remedies set forth in this subsection shall be Customer’s sole remedy and Firework’s sole liability for breach of these warranties. The warranties set forth in this Section shall apply only if the applicable Subscription Service has been utilized in accordance with the Documentation, this Agreement and applicable law.
8.2. 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.
8.3. Third Party Services. Firework does not guarantee the accuracy of the information and description of the Content displayed on 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.
8.4. General Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 8.1, 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 8.1. FIREWORK AND ITS AFFILIATES MAKE NO WARRANTY REGARDING ANY NON-FIREWORK APPLICATION WITH WHICH THE SUBSCRIPTION SERVICES MAY INTEROPERATE.
9. Limitation of Liability.
9.1. 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 OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.2. 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. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE ‘FEES AND PAYMENT’ SECTION ABOVE.
10. Indemnification.
10.1. Indemnification by Firework. Subject to Section 10.3, Firework will defend Customer from any and all claims, demands, suits or proceedings brought against Customer by a third party alleging that the Subscription Services (excluding the Customer Content), as provided by Firework to Customer under this Agreement infringe any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, an “Infringement Claim”). Firework will indemnify Customer for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Firework, in connection with an Infringement Claim. In the event of any such Infringement Claim, Firework may, at its option: (i) obtain the right to permit Customer to continue using the Subscription Services, (ii) modify or replace the relevant portion(s) of the Subscription Services with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement as to the infringing Subscription Service and refund to Customer any prepaid, unused Fees for such infringing Subscription Service hereunder. Notwithstanding the foregoing, Firework will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Subscription Services made by a party other than Firework, (2) the combination of the Subscription Services with other products, processes or technologies (where the infringement would have been avoided but for such combination), or (3) Customer’s use of the Subscription Services other than in accordance with the Documentation and this Agreement. The indemnification obligations set forth in this Section 10.1 are Firework’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
10.2. Indemnification by Customer. Subject to Section 10.3, Customer will defend Firework and its Affiliates from any and all claims, demands, suits or proceedings brought against Firework or its Affiliates by a third party alleging a violation of a third party’s rights arising from Customer’s provision of the Authorized User Data or Customer Content to Firework. Customer will indemnify Firework and its Affiliates for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Customer.
10.3. Indemnity Requirements. The party seeking indemnity under this Section 10 (“Indemnitee”) must give the other party (“Indemnitor”) the following: (a) prompt written notice of any claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor’s sole expense, and (c) sole control over the defense and settlement of the claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense.
11. Term, Termination and Effect of Termination.
11.1. Term. The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms has expired or has otherwise been terminated. Subscriptions to the Subscription Services commence on the date, and are for a period, as set forth in the applicable Order Form (“Term”). Upon expiration of the Term, unless otherwise stated on an applicable Order Form, the Subscription Services will automatically renew for additional terms equal in duration to the initial Term (each a “Renewal Term”), unless and until either party gives the other notice of non- renewal at least thirty (30) days prior to the end of the then-current Term or Renewal Term.
11.2. Termination for Breach. Either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice. Upon any termination for cause by Customer pursuant to this Section 11.2, Firework will refund Customer a pro-rata portion of any prepaid Fees that cover the remainder of the applicable Order Form Term or Renewal Term after the effective date of termination.
11.3. Effect of Termination. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms will immediately terminate and Customer will cease using the Subscription Services and Firework Confidential Information. In addition, each party shall delete or return, and make no further use of, any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Upon termination, any provision which, by its nature or express terms should survive, will survive, including, specifically, Sections 4 (Confidentiality), 5 (Ownership, Feedback and Data), 8.4 (General Disclaimer); 9 (Limitation of Liability), 10 (Indemnification), 11.3 (Effect of Termination), and 12 (General Provisions).
12. General Provisions.
12.1. 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.
12.2. Informal Resolution; Arbitration.
12.2.1. 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.
12.2.2. 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.
12.2.3. Either party may bring a lawsuit in the state or federal courts located in San Mateo County, California, or San Francisco County, California, (i) to enforce the arbitration provisions of this Agreement, or (ii) for equitable relief as described in Section
12.2.4. 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.
12.2.4. 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.
12.3. Export Compliance. Each party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not access or use the Subscription Services in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.
12.4. Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Firework’s or its Affiliates’ employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Firework.
12.5. 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, (2) this Agreement, and (3) the Documentation.
12.6. 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.
12.7. Third-Party Beneficiaries. Other than as expressly provided under this Agreement (including Section 3.4), there are no third-party beneficiaries under this Agreement.
12.8. 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.
12.9. 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.
12.10. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
12.11. 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 attempted assignment in violation of the foregoing shall be void and without effect.
12.12. Amendments. Firework may amend, modify or supersede the Agreement at any time by posting the amended, modified or superseding terms on its site and providing notice to you via email, posting the updates on the Services or any other method reasonably selected. 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.
12.13. Changes to Subscription Services. Notwithstanding anything to the contrary, Firework reserves 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, or (2) edit or delete any documents, information, or other content appearing in the Subscription Services. In the event that changes permitted by this Section 12.13 (for clarity, other than removal of Customer Content or other changes made as a result of violation of this Agreement) materially impact the features available to Customer and its End-Users for a substantial period of time, Customer may terminate this Agreement without penalty (and shall be entitled to receive a prorated refund of any unearned prepaid Fees) after providing thirty (30) days’ prior notice to Firework and Firework’s failure to cure such impact within such notice period.
12.14. 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/dmca/ for how to notify Firework.
12.15. Notices. 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.
Last Updated Date: July 13, 2022