Master Subscription Agreement
THIS MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") GOVERNS YOUR ACQUISITION AND USE OF MINDFIRE INTERNET SOLUTION'S SERVICES ("WE" OR "MINDFIREINC" OR "OUR").
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO 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 THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU", "YOUR" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. 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 SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This agreement was last updated on June 12, 2017. It is effective between You and Us as of the date of you accepting this Agreement.
1. Scope of Service.
- Subject to the limitations of this Agreement, You shall have access to the MindFireInc Platform service during the effective term and as more specifically set forth in the selected Service Level (the "Service").
- You shall be solely responsible for any third-party agent or client either invited or authorized by You to use or participate in the Service.
- Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public microsites, on the number of page views by visitors to those microsites. Any such limitations are specified in the User Guide.
- If You register on our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATION MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 5 (LIMITED WARRANTY; LIMITATION OF LIABILITY), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANT.
- You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable. Services subscription fees are based on annual, quarterly or monthly periods as specified in the Order Form that begin on the subscription start date and each annual, quarterly, or monthly anniversary thereof; therefore, fees for Services subscriptions added in the middle of an annual, quarterly, or monthly period will be charged pro-rata for that period and the periods remaining in the subscription term.
- You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If you provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order for the initial subscription term and any renewal subscription term(s) as set forth. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will by a method other than a credit card, We will invoice you in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying us of any changes to such information.
- You shall pay, on all amounts past due that have not been disputed specifically in writing and in reasonable good faith, an interest charge of one and one-half percent (1.5%) per month (or the maximum rate permitted by California law) computed from the due date of each payment. You shall also be liable for all court, arbitration and/or related collection expenses.
- You agree to pay all applicable state and local sales, use, property, or other related taxes (collectively, "Chargeable Taxes"). MindFireInc may include Chargeable Taxes in its invoices.
- If You requests reactivation due to previous deactivation resulting from non-payment or any other reason, a $500.00 reactivation fee will be assessed.
3. Limitations on Use of Service and Service Software.
- As used herein, "Software" refers to any software, intellectual property, service and/or trademarks incorporated into or used by the Service. You shall not, and will not permit, assist, or allow others to, reverse engineer, decompile, decode, disassemble, re-engineer, or otherwise discover, recreate, or attempt to discover or recreate the Software or its source code. You shall not, either directly or indirectly, manipulate, modify and/or alter the Software. However, You are hereby granted the limited right to charge others to use or access the Software or the Service. You shall not use the Software or the Service in any manner or for any purpose not otherwise expressly authorized by this Agreement.
- You shall not use the Service as a data storage, archiving and/or back-up platform. Further, You agree to use the Service only for the intended purpose of facilitating its media campaign(s).
4. Security, Privacy, and Access.
- MindFireInc will exercise reasonable care to prevent any unauthorized person or entity from gaining access to data used by You to utilize the Service ("Your Data"). Each party will promptly notify the other of any unauthorized access to or use of You Data or passwords and each shall use reasonable efforts to take remedial measures to address any such unauthorized access. MindFireInc will not be liable for any damages incurred by You or Your authorized users arising out of or related to use of the Service, including without limitation in connection with any unauthorized access to or disclosure of Your Data, resulting from the actions of You, any third-party, or from the failure of electronic or other security measures.
- You shall not disclose any login information and/or account passwords to any third-party not authorized to use the Service.
- You grant MindFireInc the right to display Your company or entity name on its customer list, which is used for MindFireInc's marketing purposes (brochures, website, etc.). However, You may request removal from this list at any time by written request.
- You agree to be bound by and to require that any third-party to whom You provide or with whom You share information, to adhere to the requirements of all applicable laws and the terms of this Agreement.
- Notwithstanding anything else in the Agreement or otherwise, MindFire may monitor Your use of the Services and use Your Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Your Data and/or identify Your Confidential Information. MindFire retains all intellectual property rights in such information.
5. Limited Warranty; Limitation of Liability.
MINDFIREINC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE. UNDER NO CIRCUMSTANCE, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND/OR BREACH OF CONTRACT, WILL MINDFIREINC BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE USE OR INABILITY TO USE THE SERVICE. IN NO EVENT WILL MINDFIREINC'S TOTAL LIABILITY FOR DAMAGES, LOSSES, OR CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, EITHER JOINTLY OR SEVERALLY, EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY YOU TO MINDFIREINC FOR THE INITIAL LICENSE, AND THE AMOUNT PAID IN THE TWO (2) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE. The remedies provided in this provision allocate the risks under this Agreement, some of which may be unknown or undeterminable. Such limitations serve as a material inducement for the parties to enter into this Agreement and the parties have relied upon these limitations in determining whether to enter into this Agreement.
- MindFireInc is not liable for the: (i) accuracy, truthfulness, or validity of any data entered by You or provided through the Service; or (ii) loss, destruction or compromise of any of Your Data.
- MINDFIREINC SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF, OR RELATED TO INTERRUPTION OF, OR DEFECTS IN, TRANSMISSION OF THE SERVICE, including, without limitation, interruptions or defects due to inability to access the Internet or any part thereof, equipment modifications, upgrades, relocations, or repairs. No reduction of fees will be made in the case of temporary interruption of or defects in the transmission of the Service.
- MindFireInc shall not be liable for interruption of or delays in transmission or termination/cancelation of the Service caused by acts of God, fire, water, riots, acts of Government, national emergency, acts or omissions of Internet backbone providers, or any other causes beyond MindFireInc's direct control.
- Your sole and exclusive remedy, if You are dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of MindFireInc is to discontinue using the Service and request termination of this Agreement.
- You shall indemnify, defend and hold harmless MindFireInc and its affiliates, employees, officers, directors, agents, licensors, third-party vendors, service providers, successors and assigns from all damages and liability, including without limitation, reasonable attorneys' fees and costs incurred, either directly or indirectly, due to: (i) Your violation of its obligations under this Agreement; (ii) the negligent or willful acts of You and/or Your end users;(iii) the violation by You or Your end users as to any privacy rights, property rights, trade secrets, proprietary information, trademarks, service marks, copyrights, mailing list usage rights, patent rights, as well as resulting claims for libel, slander, or unfair trade practices arising from use of the Service; or (iv) violation of any laws, including, absent limitation, those regulations controlling use of any form of electronic communications.
7. Term; Termination; Cessation/Suspension of Service.
- This Agreement commences on the date You accept it and continues until all Subscriptions granted in accordance with this Agreement have expired or been terminated. If you elect to the use Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
- Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the Subscription term specified therein. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional periods equal to the expiring Subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective up renewal and thereafter. Any such pricing increase shall not exceed 10% of the pricing of the relevant services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
- A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all Subscription after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
- Upon request by You made within 30 days after the effective date of termination of a purchased Subscription, We will make available to You for download a file of Your Data in a comma separated value (.csv) format along with attachment in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of your Data in our system or otherwise in Our possession or under Our control.
- The following obligations will survive the termination of the Agreement for any reason: (i) indemnification obligations set forth in Section 6(a) above; (ii) fee obligations set forth in Section 2 above that become due prior to the effective termination date; and (iii) any other provision hereof where the context of such provision indicates an intent that it is to survive the termination of this Agreement.
- MindFireInc may deny or suspend Your access to all or part of the Service without prior notice if MindFireInc believes, in its sole discretion that You have violated any term of this Agreement.
8. Acceptable Use Policy.
You are expected to strictly comply with all laws as well as MindFireInc's Acceptable Use Policy ("AUP") as set forth below or as made available through MindFireInc's website at http://mindfireinc.com/static/images/mindfire_acceptable_use_policy.pdf. MindFireInc reserves the right to update, amend, revise and/or modify this policy at any time.
- Any electronic mail service and/or SMS text message service provided pursuant to this Agreement may only be used for lawful purposes and may not violate any local, state, federal or international laws that may apply to MindFireInc, MindFireInc's third-party service providers, You or Your end users. You and your end users are expected to be aware of and thereby comply with all applicable laws, rules, and regulations concerning the use of electronically transmitted communications.
- You and Your end users may not: (i) restrict or inhibit any other user from using and enjoying the Internet; (ii) post or transmit any unlawful, illegal, threatening, harassing, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, sexually explicit, profane, or otherwise objectionable information of any kind, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any laws, including, without limitation, the U.S. export control laws and regulations, as well as laws protecting intellectual property rights such as copyrights, trademarks and trade secrets; (iii) post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component; (iv) post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the Service for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material); (v) post or transmit any information as to either illegal goods and services, escort, massage or dating services, solicit or promote any illicit pharmaceutical, pornographic, nudity contained services or products or adult related novelty services and products; (vi) post or transmit any unsolicited, prohibited advertising or mass mailings or other activities considered an annoyance to others, commonly referred to as "spamming"; and/or (vii) directly or indirectly employ any "phishing" techniques.
- MindFireInc and its third-party service providers reserve the right to: (i) monitor any and all communications transmitted through their communication platforms; (ii) disclose any information transmitted through the Service, including, without limitation, Your Data as may be deemed necessary to comply with any law, regulation and/or policy; and/or (iii) remove or refuse to post any materials they determine to be unacceptable, offensive, undesirable, in violation of the law or this Agreement.
- You acknowledge that any electronic mail service and/or SMS text message service provided by MindFireInc and/or its third-party agents are not considered a "secure communications medium" for any purpose whatsoever and that no expectation of privacy is afforded. Further, MindFireInc and its third-party service providers are granted the right to access, copy and transmit copies of the content from electronic mail campaigns for the purpose of developing tools and systems to effectively monitor and control abuses.
- MindFireInc may restrict, suspend or ban You from the use of the shared IP pools or otherwise employ any mitigating remedy in the event that "spam" or any other complaints result from either You or Your end users' utilization of the Service. However, MindFireInc, at its sole discretion, may offer You the opportunity to utilize and pay for a dedicated IP service in such instance.
- MindFireInc may, at its sole discretion, choose to temporarily suspend Your services, in case Your use of the system causes a high volume of traffic disrupting the normal system performance, as in Distributed Denial of Services (DDoS) but not limited to it.
- You shall undertake all reasonable measures to ensure the validity of those electronic mail addresses and telephone numbers for SMS text messaging to which any data or information is transmitted through the Service.
- MindFireInc, at its sole discretion, may unsubscribe any electronic mail address from where a spam complaint has initiated. However, You may, within thirty (30) days following such action, direct a written request to MindFireInc, requesting reinstatement of that specific electronic mail address by providing justification for such reinstatement.
- All recipients of electronic mail and/or SMS messages must have opted to receive them, and, on the initial message be prompted to accept ongoing communications. All messages must contain a mechanism for subscribers to opt out from further messages by the use of industry-standard keywords such as "STOP". Further, opting in to a specific mobile marketing program does not give permission to be sent messages from any other campaign not specifically related to that program.
- ANY DIRECT, INDIRECT OR ATTEMPTED VIOLATIONS OF THE A.U.P. SHALL BE CONSIDERED A MATERIAL BREACH OF THE POLICY AND THE SERVICES MAY, AT MINDFIREINC'S SOLE DISCRETION, AND ABSENT PRIOR NOTICE, BE IMMEDIATELY TERMINATED, SUSPENDED, RESTRICTED OR MODIFIED.
- This Agreement constitutes the complete and exclusive understanding between the parties relating to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements and communications, whether written or oral, relating thereto.
- This Agreement may not be amended, altered, or changed except by a separate signature acknowledging those changes signed by the duly authorized representatives of both parties.
- In the event that any provision of this Agreement is held to be unenforceable, such provision will be construed as nearly as possible to reflect its original intent and the remainder of this Agreement will remain in full force and effect.
- Your rights in this Agreement are personal and not otherwise assignable. However, MindFireInc may fully or partially assign its rights and/or obligations under this Agreement.
- This Agreement shall be governed in all respects by the laws of the State of California without regard to its conflict of laws provisions.
- Any conflict resulting from this Agreement shall be resolved by binding arbitration administered through the American Arbitration Association and conducted by a single arbitrator to be mutually selected by the parties. If the parties cannot agree to the arbitrator, one shall be appointed as provided for under the then existing Rules of the American Arbitration Association. Any arbitration proceeding shall be conducted by a single arbitrator according to the Commercial Rules of the American Arbitration Association. The arbitration forum shall be Orange County, California. The parties expressly waive their right to a jury trial. The prevailing party shall be entitled to recovery of its costs. However, each side shall bear its own attorneys' fees. Further, the arbitrator shall have the power to enter any award, order or judgment for damages as well as issuing injunctive relief and such award shall be binding with no right of appeal. The foregoing, however, shall not limit the right of either party to serve process in any jurisdiction or to commence any legal action/proceeding in any jurisdiction in order to obtain entry or execution of an arbitration award.
- The remedies provided in this Agreement and at law or in equity are cumulative and not exclusive. The failure by either party to exercise any right or remedy under this Agreement or otherwise available at law or in equity will not be deemed a waiver of any subsequent right or remedy.
- No person or entity who is not a party to this Agreement will derive any rights whatsoever hereunder as a third-party beneficiary.
- The parties agree to take all further actions, including the execution of documents, which are reasonably necessary to effectuate the transaction(s) contemplated by this Agreement.
- Any signed copy of this Agreement, whether copied, reproduced and/or transmitted via photocopy, electronic copy, facsimile or another process that accurately transmits the original document shall be considered an original document. This Agreement may be executed in separate counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same instrument.