Welcome to the Firework Publisher Program. These Publisher Program Terms of Service (“Terms”) create a binding legal agreement between you and Loop Now Technologies, Inc., d/b/a Firework (“Firework”) and govern your hosting of the Firework Network Feed, consisting of a feed of content from the Firework’s interactive video platform (the “Firework Platform”), using technology provided by Firework (the “Services”).
As used in these Terms, “you” means the individual or entity using the Services [(as well as any individual, agent, employee, representative, network, parent, subsidiary, affiliate, successor, related entities, assigns, or all other individuals or entities acting on your behalf, at your direction, under your control, or under the direction or control of the same individual or entity that controls you)]. “We” or “our” refers to Firework. You and Firework are each a “party,” and together, the “parties.”
By using the Services, you affirm that you are: (a) at least eighteen (18) years of age; and (b) fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. If you are using the Services on behalf of a company, organization, or other entity, you further affirm that you have authority to bind that organization to these Terms, and you agree to be bound by these Terms on behalf of that organization.
Access to the Services
- Accounts To be able to access and use the Services, you will be asked to provide your company name, company representative contact information, email, website URL, and confirmed data such as visitors per month and audience location and demographics. From time to time, Firework may seek additional information from you in order to verify your information or facilitate your access to the Services.
- Approval of Properties Use of the Services in any specific Property is subject to Firework approval, and Firework may refuse to provide the Services to any Property in its sole discretion. Properties must meet certain technical requirements in order to be eligible for the Services; Firework will provide information regarding those requirements upon approval of your Account.
Use of Services
Your use of the Services must comply with these Terms and all applicable law. You agree not to misuse the Services, including by attempting to interfere with the proper functioning of the Service or attempting to access the Services using a method other than the Technology and instructions provided by Firework.
Ownership and Licenses
- Ownership As between you and Firework, Firework owns all right, title, and interest in the Services and the Technology, including all: (a) all information, data, software, text, displays and visual interfaces, graphics, images, video, and audio, and all other elements of the Services, and the design, selection, and arrangement thereof; and (b) all intellectual property and other legal rights (including, but not limited to, any and all copyrights, patents, patent applications, trade secrets, trademarks and other intangible rights) therein. You will not earn or acquire any ownership rights in any copyrights, patents, trade secrets, trademarks or other intellectual property rights in the Services or Technology on account of these Terms or any access to or use of the Services. You agree that you will have no ownership or any other proprietary rights in any content included in the Firework Network Feed.
- Technology Use To the extent Firework provides you with Technology in connection with the Services, Firework grants you a limited, non-exclusive, non-sublicensable license to use such Technology for the sole purpose of enabling you to use and enjoy the benefits of the Services as provided by Firework pursuant to these Terms.
- Restrictions You may not copy, modify, distribute, sell, or lease any part of our Services or Technology, including any software, or reverse engineer or attempt to extract the source code of any software, unless otherwise permitted by law or with Firework’s written permission. You will not remove, obscure, or alter any copyright, ownership, or other notices of proprietary rights from any Firework Technology or documentation, including any Firework trade names, service marks, trademarks, logos, or domain names (“Firework Marks”).
- Firework Marks Firework grants you a limited, non-exclusive, non-sublicensable license to use the Firework Marks solely in connection with your use of the Services pursuant to these Terms, subject to any trademark usage guidelines that Firework makes available to you from time to time. Firework may revoke this license at any time. Any goodwill arising from your use of the Firework Marks will belong to Firework, and you agree that you will not use or register any trademark or domain name that is similar to or incorporates any Firework Marks.
Termination and Suspension
- Term The term of these Terms will commence on the date of your first acceptance of these Terms and will continue until terminated by you or Firework.
- Termination by Firework Firework may immediately terminate this contract with you and suspend or terminate your access to the Services for any or no reason at any time without notice, including but not limited to, if you fail to comply with any provision of these Terms.
- Termination by You You may terminate your use of the Services at any time by emailing the assigned Publisher Development Account Manager with a request to terminate and removing any Firework Technology from your Properties. Your termination will be effective within twenty-four (24) hours upon receipt by Firework of your notice or as specified in the terms of your contract.
- Survival Upon termination of these Terms, the rights granted to you under these Terms with respect to the Services (including access to and rights in any Technology, and the use of the Firework Marks) will immediately terminate. However, Firework’s ownership of your Feedback, Firework’s ability to use your name and marks, as well as the limitations on Firework’s liability, the indemnification provision, and the terms pertaining to the dispute resolution process, will survive any termination of these Terms.
Changes to the Services and Terms
- Changes to the Services Firework reserves the right to permanently or temporarily amend or discontinue the Services at any time, in our sole discretion. To the fullest extent permitted under applicable law, we will not be liable for any change to or any discontinuation of the Services.
- Changes to the Terms Firework may change any of the terms contained herein at any time, in our sole discretion. Any modifications to the Terms will be posted to this page. Please check these Terms periodically so that you are aware of any changes. We will attempt to notify you by e-mail to the address you have provided of any changes to these Terms that materially modify your rights or obligations (“Material Modifications”). Any Material Modifications will be effective upon your acceptance of the modified terms, or upon your continued use of the Services after we send notice of the changes, whichever is earlier. Changes to these Terms that do not materially modify your rights or obligations will be effective immediately upon publication. However, any disputes arising under these Terms will be resolved pursuant to the version of these Terms in effect at the time the dispute arose. If you do not agree to any modifications of the Terms, you must stop using the Services.
- Firework may include your name, and any trade names, service marks, trademarks, logos, or domain names of yours in its marketing and promotional materials, customer lists, and presentations (both internal and external), and on its website and the Firework Platform.
- You agree not to use or disclose any Firework Confidential Information to any third party for any purpose without Firework’s prior written consent. “Firework Confidential Information” means any (a) all Firework software, technology, and documentation relating to the Services; (b) any proprietary information, technical data, trade secrets or know-how relating to the Services, Firework, the Firework Platform, or any other Firework products or services, including, but not limited to, research, product plans, services, customer lists, databases, markets, developments, inventions, processes, formulas, technology, designs, drawings, engineering, marketing, finances, songs, themes, ideas, plots or other creative and business information of Firework; and (c) any other information made available by Firework that is marked confidential or would normally be considered confidential under the circumstances under which it is disclosed. Firework Confidential Information does not include information which: (x) was known to you prior to your use of any Firework services or products, including the Services; (y) has become publicly known and made generally available through no fault or wrongful act of yours; or (z) was rightfully disclosed to you by a third party who was authorized to make such disclosure.
- You agree that any comments, suggestions or feedback you provide regarding your use of the Services (“Feedback”) will become the exclusive property of Firework, regardless of the form or platform in which it is delivered. You further agree that Firework may use all or part of your Feedback or any derivative thereof in any manner or media without any remuneration, compensation or credit to you, including to improve the Services and create other products and services. You hereby assign to Firework all right, title and interest to your Feedback, including all copyrights therein. To the extent assignment is not permitted, you hereby grant Firework a royalty-free, irrevocable, perpetual, non-exclusive, worldwide, fully sublicensable license to exploit your Feedback as described in this section.
Representations and Warranties; Disclaimers
- Representations and Warranties You represent and warrant that: (a) you are eighteen (18) years of age or older; (b) you have full right, power, and authority to enter into these Terms; (c) you are the owner of, or are legally authorized to act on behalf of the owner of any Properties subject to these Terms; (d) there is nothing known to you that would prevent you from performing its responsibilities and obligations under these Terms; (d) entering into and carrying out the obligations of these Terms will not breach, or interfere with, any other contractual obligation you may have; (e) during your use the Services, you will not enter into any agreement (written or oral, formal or informal) that would prevent you from performing your responsibilities and obligations under these Terms; (f) you have never been suspended from using the Services for any reason, including due to your breach of these Terms; and (g) all information you provide to Firework is true, correct, and current.
- Disclaimers YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, AND ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FIREWORK DOES NOT MAKE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, COMPLETENESS, AVAILABILITY, COMPATIBILITY OR NON-INFRINGEMENT; OR THAT THE SERVICES WILL BE UNINTERRUPTED, FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS, ACCURATE, ERROR FREE, OR RELIABLE; OR AS TO THE PROPRIETY, SUITABILITY, QUALITY OR ANY OTHER ASPECT OF THE CONTENT PROVIDED IN THE FIREWORK NETWORK FEED. FIREWORK IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT PROVIDED IN THE FIREWORK NETWORK FEED. FIREWORK IS NOT RESPONSIBLE OR LIABLE FOR ANY DECISIONS YOU MAY MAKE IN RELIANCE ON THE SERVICES OR CONTENT OF THE FIREWORK NETWORK FEED, OR FOR ANY DEFECTS OR ERRORS THAT MAY RESULT FROM YOUR PROVISION OF INCOMPLETE OR INACCURATE INFORMATION TO FIREWORK, OR YOUR USE OF THE TECHNOLOGY WITH HARDWARE OR SOFTWARE THAT DOES NOT MEET THE MINIMUM REQUIREMENTS SPECIFIED BY FIREWORK. YOU EXPRESSLY AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING YOUR COMPUTER SYSTEM, OR THE LOSS OF DATA, THAT RESULTS FROM USE OF THE SERVICES.
Limitation of Liability
- TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FIREWORK, OR ITS AFFILIATES, SUCCESSORS AND ASSIGNS, OR ANY OF THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND SUPPLIERS (COLLECTIVELY, THE “FIREWORK PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF USE, THE CLAIMS OF THIRD PARTIES, AND ANY COST OF ANY SUBSTITUTE SERVICES, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHER THEORY, EVEN IF THE FIREWORK PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FIREWORK’S AGGREGATE LIABILITY UNDER THESE TERMS IS LIMITED TO THE GREATER OF THE ACTUAL AMOUNT RECEIVED FROM YOU BY FIREWORK IN CONNECTION WITH THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF ANY CLAIM AND ONE THOUSAND UNITED STATES DOLLARS ($1,000).
- You agree to indemnify and hold harmless the Firework Parties from and against any and all liabilities, claims, damages, expenses (including reasonable attorney’s fees and costs), and other losses arising out of or in any way related to: (a) your breach or alleged breach of these Terms; (b) your access to, use of, or alleged use of the Services; (c) your Feedback; (d) the Properties; and (e) any claims arising from or alleging fraud, intentional misconduct, gross negligence, or criminal acts committed by you. Firework reserves the right to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In such event, you shall provide Firework with such cooperation as Firework reasonably requests.
- Overview In order to expedite and control the cost of disputes, you and Firework agree that any legal or equitable claim, dispute, action or proceeding arising from or related to your use of the Services or these Terms (“Dispute”) will be resolved by arbitration if the parties are unable to reach agreement through negotiation of the dispute. This applies to all Disputes, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, even if the Dispute arises after the termination of these Terms. Arbitration is a less formal proceeding than a lawsuit in a court, does not involve a judge or jury, and may allow for less discovery than in a court. An arbitration is conducted by a neutral arbitrator. An arbitrator can award the same types of relief that a court can, such as damages, but a decision from an arbitrator can be subject to very limited review by a court. YOU UNDERSTAND AND AGREE THAT YOU AND FIREWORK ARE HEREBY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO JOIN AND PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER THE LAW.
- Exceptions to Arbitration Agreement Despite this arbitration agreement, both you and Firework will still be able to: (a) bring an individual action in small claims court; (b) bring an individual action seeking injunctive relief in a court of law; (c) bring suit regarding intellectual property infringement; and (d) bring issues to the attention of federal, state, or local agencies, which may result in legal action.
- Opt-Out of Arbitration Agreement You have the right to opt out of this agreement to arbitrate by contacting your Publisher Development Account Manager within thirty (30) days of first accepting these Terms. In your request, please state that you decline the arbitration agreement in this Section, and provide your full name and the e-mail address you used to register for the Services. There is no penalty for opting out of this arbitration agreement.
- Notice of Dispute In the event of a Dispute, you or Firework must give the other a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution, including any relief sought (a “Notice of Dispute”). You must send any Notice of Dispute by certified or registered U.S. Mail or internationally recognized commercial delivery service (signature required) to Firework at 2635 Broadway Street, Redwood City, CA 94063 and also via e-mail to email@example.com. Firework will send any Notice of Dispute to you by certified or registered U.S. Mail or internationally recognized commercial delivery service (signature required) to your address if we have it, or otherwise to your e-mail address. You and Firework will attempt to resolve any Dispute through informal negotiation within thirty (30) days from the date the Notice of Dispute is sent. After thirty (30) days, you or Firework may commence arbitration.
- Binding Arbitration and Governing Law To the fullest extent permitted under law, any arbitration between you and Firework will be administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules, supplemented by the Supplemental Procedures for Large Complex Disputes in effect at the time the Dispute is filed, as modified by these Terms. YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. INSTEAD, ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE DECISION WILL BE FINAL EXCEPT FOR A LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT.
- Class Action Waiver TO THE FULLEST EXTENT OF THE LAW, YOU AND FIREWORK AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND NEITHER YOU NOR FIREWORK WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
- Arbitration Location Any arbitration hearing will take place in San Mateo County, California, USA, in a location that you and Firework agree upon, unless you are located outside of the United States, in which case any arbitration hearing will take place in London, England.
- Costs You and Firework shall each pay one-half of the costs and expenses of such arbitration, and each shall separately pay its counsel fees and expenses unless otherwise required by law.
- Filing Period TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE UNDER THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR IN AN ARBITRATION PROCEEDING. The one-year period begins when the events giving rise to the Dispute first occur. If a claim is not submitted within one year, it is permanently barred. This period can only be extended by the written consent of both parties. No statutes or provisions of law that would toll or otherwise affect the time in which a party may bring a claim shall operate to extend the period limited in this Section, and any such statutes and provisions are hereby waived, to the fullest extent permitted by law.
- Modifications You have the right to reject any changes to this arbitration provision, except for a change to Firework’s contact information. You may reject a change by sending us written notice within thirty (30) days of such change. This will result in you being immediately suspended from the Services. Note that this arbitration provision, as it was prior to any rejected changes, will remain in effect.
- Enforceability If the waiver of class actions above is found unenforceable, or this entire section is found unenforceable, then this entire section will be null and void. If that happens, you and Firework agree that the section below on exclusive jurisdiction and governing law will govern any Dispute.
- Supplemental Terms When using the Services, you agree to comply with and are subject to any posted guidelines, rules, or supplemental terms applicable to such services or features, as may be posted from time to time. All such guidelines, rules, or terms are hereby incorporated by reference into the Terms. To the extent that you are asked to review and accept any supplemental terms that expressly conflict with these Terms, the supplemental terms associated with the applicable portion of the Services govern with respect to your use of such portion of the Services to the extent of the conflict.
- Section Headers Section headers are provided for convenience and do not affect the interpretation of any provision or the rights of any party.
- Entire Agreement; No Assignment These Terms and any other terms expressly incorporated by reference herein form the entire agreement between you and Firework regarding the subject matter of this Agreement. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Firework without restriction. These Terms operate to the fullest extent permissible by law.
- No Joint Venture, Partnership, Employment, or Agency Relationship You agree that no joint venture, partnership, employment, or agency relationship exists between you and Firework as a result of these Terms or your access to and use of the Services.
- Severability If any provision of these Terms is held to be unlawful, void, or unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
- Force Majeure Firework will be excused from performance under these Terms for any period when we were prevented from or delayed in performing any obligations under these Terms, in who or in part, due to circumstances beyond our reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, telecommunications, network, computer, server or Internet downtime, unauthorized access to Firework’s information technology systems by third parties, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- No Waiver Firework’s failure to enforce any provisions of these Terms or respond to a violation by any party does not waive Firework’s right to subsequently enforce any terms or conditions of the Terms or respond to any violations. Nothing contained in these Terms is in derogation of Firework’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Services or information provided to or gathered by Firework with respect to such uses.
- Governing Law; Exclusive Jurisdiction These Terms shall be governed by, and construed and interpreted in accordance with, the laws of the State of California (without giving effect to conflict of law principles). To the extent a lawsuit or court proceeding is permitted under these terms, you and Firework agree that any dispute will be litigated in the state or federal courts located in San Mateo County, California, and both of us submit to the personal and exclusive jurisdiction of those courts.
- Contact For inquiries or questions regarding these Terms or the Services, please contact your Firework Publisher Development Account Manager.