Subscription Service Terms

Terms

1. Applicability and Conflict.

1. These Subscription Service Terms ("Subscription Terms") are a part of and incorporated into the Master Services Agreement (“MSA”) and shall apply with respect to your access and use of any Subscription Services provided by Firework. “Subscription Services” as used herein does not include the Boutir Platform.  Capitalized terms used and not defined herein have the meanings set forth in the MSA.
2. In the event of any conflict between these Subscription Terms, the MSA, and an executed Order Form as to the access and use of any Subscription Services, the conflict will be resolved according to the following order of precedence: (a) the Order Form; (b) the Subscription Terms; and (c) the MSA.

2. Firework Obligations.

1. 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); and (b) both user video content and live streams are available via the Subscription Services.

3. Customer's Use Obligations.

1. 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.
2. 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, Data, and License.

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.
2. Usage Data. 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. License. By placing Customer Content on the 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 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. 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.

5. Warranties and Disclaimer.

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 6.1, 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.
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.
3. Customer Promotions. If Customer uses any Services for any Customer Promotions, Customer is solely responsible to ensure that such Customer Promotion complies with all applicable legal requirements and must include in any Customer Promotion that each participant releases Firework and its Affiliates from all liability and that the Promotion is not sponsored, endorsed, or administered by Firework or its Affiliates. Firework and its Affiliates are not liable for Customer’s use of the Services for any Customer Promotion.
4. 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 represent and warrant that you will not implement any fully automated decision making functions in the AI Services.
5. 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.
6. 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.
7. General Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN THESE SUBSCRIPTION SERVICE TERMS, 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 SERVICES WILL ALWAYS BE SECURE, ERROR-FREE, OR TIMELY; (B) THE 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.  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.

6. Indemnification by Firework.

Notwithstanding any provision in the Business Service Terms, with respect to the Subscription Services, Subject to Section 6.3, 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 6.1 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.

7. Indemnification by Customer.

Notwithstanding any provision in the MSA, with respect to the Subscription Services, subject to Section 6.3, you hereby agree to defend Firework against any and all claims, complaints, charges, demands, suits or proceedings brought against Firework by a third party due to, arising out of, or relating in any way to: (a) your actual or alleged breach of the Agreement, these Subscription Service Terms, and any applicable Supplemental Terms; (b) your use of any products or services provided by a third party in connection with the Subscription Services; (c) a Customer Promotion; and (d) any and all activities under your account.  You will hold Firework harmless and indemnify Firework 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 you, in connection with the claim.

8. Indemnity Requirements.

The party seeking indemnity under this Section 6 ("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. Any settlement shall not impose any monetary or non-monetary obligations on the Indemnitee.

9. Term and Termination

1. Term. The term of these Subscription Services Terms commences on the Effective Date of the Order Form 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 ("Initial Term"). Upon expiration of the Initial 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" and together with the Initial Term the “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. For clarity, all Fees for Subscription Services are non-cancelable and non-refundable.
2. Termination for Breach or Insolvency. Either party may terminate an Order Form 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. If you terminate for cause under this section, Firework will refund you a pro-rata portion of any prepaid Fees that cover the remainder of the applicable Term after the effective date of termination. Firework or its Affiliates may terminate if you: (a) become insolvent; (b) voluntarily become subject of any insolvency proceeding; (c) or are more than 60 days delinquent in paying your Fees.
3. Effect of Termination. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms and all licenses granted thereunder 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, Ownership, and Data, General Disclaimer, Indemnification, and Effect of Termination.

“AI Services” mean Firework’s AI Virtual Assistant, Livestream Chatbot or any other Firework products that incorporate artificial intelligence.

“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/or (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).

“Customer Promotion” means any Customer sweepstakes, contests, coupons, loyalty-based offerings, or other promotions.

“Usage Data” means 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.