MASTER SUBSCRIPTION AGREEMENT

This Master Subscription Agreement (“Agreement”) is entered between FireLabLLC with offices located at 276 5th Avenue, Ste 704-1720 New York, NY 10001 (“FireLab” or “Provider”) and the “Customer” or “You”) relating to Customer’s use of the Services defined herein. Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement.

THE CUSTOMER AGREES TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT AND THE CUSTOMER IS PERMITTED TO PROCEED TO ACCESS THE SERVICES. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, PROVIDER IS UNWILLING TO GRANT CUSTOMER ANY RIGHTS TO USE THE SERVICES, AND CUSTOMER MUST STOP INSTALLING AND ACCESSING THE SERVICES.

 

This Agreement sets forth the terms under which FireLab will provide Customer, Authorized Users and authorized 3rd party end users with access to its proprietary web based software application named “Aries” which facilitates the inspection, testing and maintenance of fire life safety systems.

(the “Services”)

 

1 Definitions

“3rd Party” or “3rd Parties” means any person or entity including contractors not employed by Customer that is authorized by Customer to enter data or information into the Services or that provides Data to Customer to upload, import, process by means of the Services. “Administrator Users” means the Authorized User(s) designated by Customer who are responsible for administering the Services and who are issued an Administrator login by FireLab or Customer.

“Agreement” means these terms and conditions, the Exhibits attached hereto and any other statements of work, exhibits or appendices thereto, whether attached or incorporated by reference.

“Authorized User” means any current employee and / or contractor of the Customer that has completed the process to become an Authorized User and created user identifications and passwords and/or who have downloaded a mobile version of the application and created user identifications and passwords which includes third parties. You are responsible for ensuring that your Authorized Users comply with this Agreement and interact with the Services in a manner consistent with your obligations under this Agreement. You, and not FireLab, are responsible for the acts and omissions of your Authorized Users (including breaches of this Agreement caused by your Authorized Users and 3rd parties) and any activity occurring in your Authorized User and 3rd party accounts, even if not authorized by you.

 

“Customer” means the customer legal entity that is a corporation, partnership, sole proprietorship or individual has executed this Agreement and is authorized to use the Services.

 

“Customer Data” or “Data”means all electronic data or information submitted, uploaded, imported, processed through, collected from, made available by, produced by or resulting from Customer’s use of the Services or its authorized users including administrative users, employees, managers and 3rd parties regardless of whether or not the Customer Data is owned by Customer during the Term.

 

Customer Data includes but is not limited to:

(i) Data;

(ii) Customer records, data files, input materials, reports, forms;

(iii) Data provided by Customer’s Clients to Customer; or

(iv) any information relating to an identified or identifiable natural person defined as an identifiable person who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity. Customer Data may include the name, email addresses, telephone numbers and information of any person logging in to the Services or any information pertaining to Customer’s customers including information that is inputted by Customer into the Services. All Customer Data has been designed, created and provided solely by Customer or by 3rd parties on its behalf without the participation or involvement of FireLab. Customer is responsible for any actions it takes with respect to Customer Data, including uploading it to the Services or using the Services to share or otherwise make available such Customer Data to third parties. Customer is responsible for ensuring that it has all the rights and permissions needed to use Customer Data in connection with the Services. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data entered into the Services. FireLab assumes no responsibility for the accuracy, propriety, or usefulness to Customer of the Customer Data. FireLabshall not be liable to Customer or any third-parties for any loss, damage or expense whatsoever and howsoever arising from any Customer Data entered into the Services by Customer or by an entity on its behalf. Customer acknowledges that FireLab will rely on the accuracy of the Customer Data provided to FireLab by as long as someone signs or click accepts the agreement it does not matter if its a business or individual. you can delete these things Customer as it performs its requested functions under this Agreement. Customer acknowledges that it owns all of the Customer Data or has all rights to grant such licenses to FireLab to use such Information in furtherance of providing the Services without infringement or violation of any third party rights.FireLab provides no warranties, representations or indemnification to Customer for its access to, and use of the Customer Data.

Customer acknowledges and agrees that FireLab shall have the right to use any data collected or created by FireLab in connection with this Agreement that:
(i) is transactional or statistical data that relates to Customer’s use of the Services; and
(ii) is based on or derived from Customer Data solely to the extent used in de-identified, aggregated form (collectively, “Derived Data”).FireLab may use Derived Data for purposes of improving the Services, benchmarking, marketing and demonstrating the success of the Services and for any other purposes permitted under applicable law. In no event shall Derived Data be used in a manner that identifies an individual person or Customer as the source of the data.
Customer gives consent to FireLab to use the Customer Data when integrating with third party company systems to perform services on FireLab’ behalf relating to the functionality of the Services and that Customer consents to FireLab using Customer Data that may include personally identifiable information and credit card information.
“Documentation” means the administrative and user manuals published by FireLab and provided by FireLab to Customer with the Services, which may be updated from time to time, but excluding any sales or marketing materials.

“Electronic Communications” means any information transmitted in whole or part, electronically received and/or transmitted through the Services.

“Equipment” means that Customer shall be responsible for the cost of, and for providing, its own devices to access the Services.

“Order Form” shall mean the Order Form and mutually agreed upon Statement of Work (a “Statement of Work”) to create any derivative versions (“Deliverables”) of the Services. When both FireLab and Customer have executed an Order Form,that OrderFormbecomeseffective,andapartofthisAgreement,asoftheeffectivedateset forth there in (the “Order Effective Date”),

“Sites” means the FireLab websites.

“Term” has the meaning set forth in Section 10.1 below.

“Third Party Integrated Services” means applications or services that are provided and managed by third party providers, and interoperate with the Services including but not limited to any third party that enables the Services to act as a conduit to send Customer Data or any type of information to the intended party. In consideration for Customer’s acceptance of and subject to the terms and conditions incorporated herein and the Privacy Policy (“Privacy Policy”) located at: www.firelabinc.com as may be amended from time to time, and incorporated herein by this reference, FireLab shall provide access to the Services to Customer during the term of this Agreement. FireLab will use commercially reasonable efforts to make the Services accessible to Customer 24 hours per day, 7 days per week, subject to any downtime for maintenance, updating, and repair. Notwithstanding the foregoing, Customer acknowledges and agrees that FireLab shall have no responsibility for its inability to use the Services or access the Services due to network interruption, communications failure, or server downtime.

 

2 Limited Rights; Ownership
2.1 FireLab grants to Customer and Customer accepts from FireLab, a limited, revocable, non-exclusive, non-transferable right to access and use and permit Administrative Users and Authorized Users to access and use the Services solely for the internal business operations of Customer during the Term. The Services shall not be used by Customer or by Authorized Users for, or on behalf of, third parties that are not authorized under this Agreement. Customer shall use its best efforts to ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement. Customer acknowledges that its right to use the Services will be conditioned upon:

(i) Customer’s payment of the Fees associated with using the Services; and

(ii) the Services being web-based only and will not be installed on any servers owned or controlled by Customer or otherwise provided to Customer without FireLab’s consent. Nothing in this Agreement shall be deemed or construed to limit, in any way, FireLab’s rights to use or license the Software to others, in any manner or for any purposes during the term of this Agreement.

 

2.2 Authorized Users: Passwords, Access, and Notification.

Customer, through its Administrator, shall authorize access to and assign unique passwords and user names for all employees authorized to access the Services. Authorized User logins are for designated Authorized Users and cannot be shared or used by more than one Authorized User. Customer will be responsible for the confidentiality and use of Authorized User’s passwords and user names. FireLab will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall promptly notify FireLab of any unauthorized access or use of the Services and any loss or theft or unauthorized use of any Authorized User’s password or name and/or Services account numbers.

 

2.3 Use of the Services.

Customer is responsible for all activities and Electronic Communications conducted by its Authorized Users and for its Authorized Users’ compliance with this Agreement, including the content of all Customer Data. Customer will not:

(a) sell, lease, license or sublicense the Services;

(b) introduce into or transmit through the Services any virus, worm, trap door, back door, and other harmful or malicious code, files, scripts, agents, or programs;

(c) transmit or store infringing material in the Services;

(d) send any Electronic Communication from the Services that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Services may be copied, republished, displayed in any form or by any means. Customer agrees not to access the Services by any means other than through the interfaces that are provided by FireLab.

You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content and Your Applications, including any viruses, Trojan horses, worms or other programming routines contained in Your Content or Your Applications that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.

 

2.4 Third Party Integrated Services.

FireLab allows third party vendors, service providers, software developers and information systems companies to provide applications, websites and/or features via the FireLab Products that interoperate with the Products including but not limited to any third party (the “Integrated Services” and “Integrated Services Providers”). The Integrated Services enables the Products to act as a conduit to send Customer Data or any type of information to the Integrated Services Provider to assist the Products in collecting data and information from Customer: (i) to identify opportunities in the data to be utilized by Customer while using the Products; (ii) to make improvements to the software underlying the Products; and (iii) to measure Key Performance Indicators (KPIs) related to specific areas of the Data. FireLab offers Integrated Services by either i) licensing technology from a third party Integrated Services Provider and embedding it in the Products; or ii) establishing a connection or conduit with a third party Integrated Services Provider’s software platform or information system enabling the Products to send Customer Data or any type of information to the third party Integrated Services Provider. (i) and (ii) are collectively the “Embedded Technology”). Customer consents to use Embedded Technology with the Products. Customer also consents to and acknowledges that any third parties offering Embedded Technology may have access to, store, transmit or care for sensitive and confidential customer data or information. FireLab is not responsible or liable for any aspect of any Integrated Services or Embedded Technology that Customer may procure or connect to through use of any of the Products or any interoperation, descriptions, promises, or other information related to the foregoing. FireLab is also not responsible or liable for any interoperation, descriptions, promises, or other information related to any Integrated Services or Embedded Technology. Customer agrees that FireLab may enable such third party providers to access Customer Data for the interoperation of such Integrated Services or Embedded Technology with the Products, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider pursuant to a separate privacy policy or other terms governing Customer’s access to or use of the Integrated Services or Embedded Technology.

 

2.5 Integrated Services.

Customer acknowledges that:

(i) in order to use certain Integrated Services, there may be additionally applicable terms and conditions including those which may establish a direct contractual relationship between Customer and an Integrated Services provider; and

(ii) Uptime, availability and support of Integrated Services may be provided by an Integrated Services provider and not FireLab. Customer agrees FireLab may allow the provider of such Integrated Services to have access to, store, transmit or care for sensitive and confidential customer data or information as required for the interoperation of that Integrated Service with the FireLab Products. FireLab shall not be responsible or liable for any damages suffered by Customer related to the disclosure, modification or deletion of Customer Data resulting from any such access to Customer Data by any Third Party Integrated Services Providers. FireLab does not warrantor support Integrated Services, except as specified in a specific addendum to this Agreement related to the Integrated Service.

Embedded Technology will be used among other ways to collect data and information from Customer:

(i) to identify opportunities in the data to be utilized by Customer while using the Products;

(ii) to make improvements to the software underlying the Products; and

(iii) to measure Key Performance Indicators (KPIs) related to specific areas of the Data.FireLab has no duty to verify the accuracy or reliability of all such Data and information collected by the Embedded Technology or the data measured by KPIs. FireLab shall not be liable for any loss, damage or expense whatsoever arising from any breach or error, loss or damage caused by a Third Party Integrated Services Provider or for any damages claimed suffered by Customer or any third party related to their reliance on the collection of data and information by the Embedded Technology or measured by KPIs.

 

2.6 Hosting Center Facilities.

The hosting center facilities supporting the Services, all related Applications and the Third Party Integrated Services where applicable and delivered by FireLab for usage by the Customer shall be provided for and managed by a third party FireLab (the “third party FireLab”) not a party to this Agreement. FireLab shall not be liable in respect of any breach or error in delivery, loss, damage or interruption to the Services, or Third Party Integrated Services during the Term of this Agreement caused by the third party FireLab. Customer shall immediately notify FireLab , in writing of any such error, loss, breach, damage or interruption. FireLab shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any breach or error, loss, damage, defect or interruption to the Services caused by the third party FireLab.

 

2.7 Security.

Each party will use commercially reasonable measures to maintain and enforce physical and logical security procedures to prevent unauthorized access to and/or use of the Services and the Customer Data. FireLab will use commercially reasonable measures to secure and defend the Services against “hackers” and others who may seek to modify or access the Services or the Customer Data without authorization. FireLab will use commercially reasonable efforts to remedy any breach of security or unauthorized access. FireLab shall not be responsible or liable for the disclosure of or unauthorized access to Customer Data caused by Customer, its Authorized Users, Customer’s affiliates, or the employees, third parties, agents or contractors of any of the foregoing. Customer is responsible for protecting the confidentiality and security of its account access credentials (including passwords and devices used for two-factor authentication purposes) used by Customer and its Authorized Users to access the Services. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services. If Customer becomes aware of any unauthorized use of the Services or access to Customer’s accounts, Customer will terminate such use (if practicable) and promptly notify FireLab .

 

2.8 Transmission of Data.

The Services allows Customer to send and receive Electronic Communications and Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use the Services. Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by FireLab. FireLab is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data across networks not owned and/or operated by FireLab , including but not limited to, the Internet and Customer’s local network.

 

2.9 Compliance with Laws.

FireLab will comply with all applicable laws and regulations affecting the operation of FireLab ‘s business, including any applicable export restrictions and data protection laws. Customer will be solely responsible:

(i) for compliance by Customer with all laws and governmental regulations affecting Customer’s business,

(ii) for using the Services in a manner to assist it in complying with same, and

(iii) the content and accuracy of all reports and documents prepared in whole or in part by using the Services. Customer will review any calculations made by using the Services and satisfy itself that those calculations are correct. The Services is not a substitute for the advice of an attorney and does not include any legal, regulatory, accounting or tax advice and Customer and its affiliates will rely solely upon their own advisors with respect to any such advice.Customer agrees and acknowledges that FireLab is not a law firm, does not provide legal advice or representation, and that no attorney-Customer relationship exists or will be formed between FireLab and Customer.

 

2.9 Service Level.

FireLab’s commitment to the availability of the Services and related matters are specified on the “Service Level Agreement” attached hereto as Exhibit A (the “Service Level Agreement” or “SLA”), which is hereby incorporated by reference.

 

2.10 Maintenance and Support for Services.

FireLab will provide Maintenance and Support for the Services as described in Exhibit A here to (“SAAS Maintenance and Support”), which is hereby incorporated by reference. SAAS Maintenance and Support is included in the subscription fees paid by Customer for the Services.

 

2.11 Implementation Services.

Implementation and training services will be performed in accordance with FireLab’s customary practices for the level of services purchased. Implementation is performed remotely unless otherwise specified.

 

2.12 Upgrades.

Any upgrades or additional services and customization not set forth in this Agreement to the Services required by Customer will be the subject of a separate agreement and charged as consulting hours at the current prevailing at an agreed upon rate.

 

3.1 “Customer Content” shall mean any materials uploaded by Customer onto the Services or by a third party on Customer’s behalf at any time, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text. Customer assumes sole responsibility for ensuring that the Customer Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Provider reserves the right, in its sole discretion, to exclude or remove from the Services any Content uploaded by Customer which, in Provider’s sole reasonable discretion, may violate any law or third party rights or which otherwise exposes or potentially exposes Provider to civil or criminal liability or public ridicule.

 

3.2 Customer shall not place nor cause to be placed on the Services any Content that contains any content or materials which is obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise exposes FireLab to civil or criminal liability. Customer assumes sole responsibility for ensuring that the Customer Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, FireLab reserves the right, in its sole discretion, to exclude or remove from the Services any Content uploaded by Customer which, in FireLab ‘s sole reasonable discretion, may violate any law or third party rights or which otherwise exposes or potentially exposes FireLab to civil or criminal liability or public ridicule. FireLab shall have no liability to You in the event that FireLab takes such action. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your Content and Your Applications. You agree to defend and indemnify FireLab against any claim arising out of a violation of Your obligations under this section.

 

3.3 The Customer may, from time to time, provide content to FireLab for publication on the Sites (Customer Content) which is available only to an Authorized User and on the following basis:

  • The Customer warrants that it is either the sole owner, licensor or licensee with a right to sub-license of all Customer Content provided to FireLab (including, but not limited to: the right to sell, transmit, copy, and reproduce the Customer Content).
  • The Customer grants to FireLab a non-exclusive, worldwide, non-transferable, license to make the Customer Content available to Authorized Users on the Sites during the term of this agreement.
  • FireLab will determine whether or not (and when) to make the Customer Content available on the Services at its absolute discretion. The Customer Content will be attributed to the Customer on the Services and only be made available to the Customer’s Authorized Users.
  • FireLab takes no responsibility for the Customer’s Content and is not liable in any way for the Customer’s Content. The Customer indemnifies FireLab and will pay to FireLab the amount of any loss or costs incurred or suffered by FireLab as a result of a breach of this paragraph 3.3 by the Customer or otherwise in respect of anything contained in the Customer’s Content.

 

3.4 Customer represents and warrants that (a) Customer Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or

right of any third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other party right, and (b) Customer owns the Customer Content or otherwise has the right to use the Customer Content.

 

3.5 Customer Data Responsibility.

Customer acknowledges and agrees that any and all Customer Data is the responsibility of the person or entity from whom such Data originated. Thus, Customer and not FireLab , is entirely responsible for all Customer Data that its Users upload, post, email, transmit or otherwise make available via the Services. Accordingly, FireLab does not guarantee the accuracy, integrity, timeliness, completeness or quality of any Customer Data. Customer agrees that it must evaluate, and bear all risks associated with, the use of or reliance on any Customer Data. FireLab does not endorse or make any representations about any Customer Data, or any results that may be obtained from using any Customer Data. Further, Customer understands that by using the Services it may be exposed to Customer Data that is inaccurate, offensive or objectionable. Under no circumstances will FireLab be liable in any way for any Customer Data, including any errors or omissions in any Customer Data, or any loss or damage of any kind incurred as a result of the use of any Customer Data.

 

3.6 Customer Data.

Title to, and all Intellectual Property Rights in, the Customer Data (and all complete or partial copies thereof in any medium or form) are retained by Customer or its Users unless FireLab is requested by a government agency or authority, subpoena or court order to produce the Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. FireLab will not use the Customer Data for any purpose other than to provide the Services to Customer and to improve the Services.

 

3.7 Limited License to The Customer Data and Customer Content.

Subject to the terms and conditions of this Agreement, Customer grants FireLab the limited, non-exclusive, non-transferable terminable license to copy, store, host, record, transmit, maintain, display, view, print, or otherwise use both the Customer Data and Customer Content to provide the Products pursuant to and in accordance with this Agreement with certain restrictions as explained more fully in our Privacy Policy.

In order to improve the functionality of the Services, You agree that Customer Data may be statistically analyzed for patterns of use and behaviors. Customer Data is always analyzed in a de-identified format so that Customer Data remains anonymous in the process. Customer understands and agrees that FireLab may disclose, sell or share with our partners any aggregated, anonymized information about our customers, users and third parties that does not identify any individual, without restriction as explained more fully in our Privacy Policy.

You give consent to FireLab to use the Customer Data when integrating with third party company systems to perform services on FireLab’ behalf relating to the functionality of the Services and that You consent to FireLab using Customer Data that may include personally identifiable information and credit card information. We will only use such data with our partners or service providers who perform functions to enable FireLab to provide its Services.

Customer shall not:

(i) resell, sublicense, distribute or otherwise provide access to the Customer Data to any third party that has not been anonymized and aggregated so that no individuals can be personally identified from the Customer Data; and

(ii) combine any Customer Data with any personally identifiable information for the purpose of targeted advertising or the sending of emails to any individuals or companies.

 

Confidentiality
4.1 Confidential Information.
For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Services and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which:
(1) is known publicly;
(2) is generally known in the industry before disclosure;
(3) has become known publicly, without fault of the Receiving Party;
(4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party;
(5) is independently developed by the Receiving Party without use of or reference to the Confidential Information, or
(6) is aggregated, de-identified data that does not contain any personally identifiable or Customer-specific information.

 

4.2 Non-Disclosure Obligations.

Each party agrees: (a) not to use or disclose Confidential Information except to the extent reasonably necessary to perform its obligations or exercise rights under this Agreement or as directed by the disclosing party; (b) to protect the confidentiality of Confidential Information in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information), and (c) to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation.

 

5. Intellectual Property – Ownership of the Services and Additional Services.

Customer agrees that all rights, title and interest in and to all intellectual property rights in the Services and Documentation (including without limitation the software used to provide the Services) are retained and owned exclusively by FireLab. In addition, FireLab shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Services and its other product and service offerings any ideas, suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the operation of the Services. Any rights not expressly granted herein are reserved by FireLab.

Except the right to access and use the Services, as expressly provided herein, this Agreement does not grant to Customer any rights to, or in, patents, copyrights, Personal Database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Services or the software (the “Software”) used to provide the Services. Customer shall not attempt, or directly or indirectly allow any Authorized User or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services, Work Product and/or Software in any form or media or by any means. The provisions of this paragraph 5 shall survive termination of this Agreement. The Customer shall also not use any automated scripts or “robots” to access, copy, or manipulate any aspect of the Services, including the Modules.

 

The Customer agrees and acknowledges that the Services, which includes FireLab Software and its content (Content and Software) is owned by or licensed to FireLab and is protected by US laws. FireLab owns (or is the licensee of) the Intellectual Property rights in the Content and Software including, but not limited to, copyright which subsists in all creative and literary works incorporated into the Content and Software. The Customer agrees that, as between it and FireLab, FireLab owns all Intellectual Property rights in the Content and Software and that nothing in this agreement constitutes a transfer of any Intellectual Property in the Content and Software. The Customer or it’s Authorized Users’ use of the Content and Software does not grant a license or act as a right to use any Intellectual Property in the Content and Software, whether registered or unregistered, except as stated in this agreement, or with FireLab’ written permission. The Customer must not (and must ensure that the Authorized User’s do not) breach FireLab’ Intellectual Property rights by, including but not limited to:

  • altering or modifying any of the Content and Software;
  • creating derivative works from any of the Content and Software; or
  • using any of the Content and Software for commercial purposes such as on-sale to third parties.

 

5.1 Use of Marks.

FireLab’s Marks and the names and logos associated with the Services or parts thereof (“FireLab Marks”) are trademarks of FireLab. Other third party product, service and company names, logos or marks mentioned as part of the Services are trademarks and/or service marks of their respective owners. During the Term, FireLab hereby grants Customer the right to use the FireLab Marks applicable to the Services solely for the marketing and promotion of such Services for the Business Purpose only in accordance with FireLab’s published guidelines for use of such Marks. To the extent the Business Purpose includes the provision of outsourced services to third parties, of which the Services is a part of or in addition to such services, Customer shall use its best efforts, at its expense, to market and promote each Services for the Business Purpose, including formal and active print and online campaigns, and participation in seminars and forums with its Customers. Any materials for such purpose shall prominently display the FireLab Marks applicable to such Services. Any and all goodwill associated with these rights and the FireLab Marks shall automatically vest in FireLab. Customer shall also not:

(i) use the Services for any purpose or in any manner other than as set out in this agreement;

(ii) use the Services, or allow the Authorized Users to use the Services, in any way that could damage the reputation of FireLab or the goodwill or other rights associated with the FireLab Content and

(iii) permit any third party to use the Services other than as set forth in this agreement.

Customer agrees that FireLab may refer to Customer as a Customer of FireLab and hereby grants FireLab the right to use Customer ’s trademarks, trade names, trade symbol, and logos (collectively “Customer Marks”) in connection with the marketing and promotion of FireLab, the Services or part thereof (including a specific Program or Service). FireLab may also use the experience of Customer and its Users in marketing materials, including white papers, case studies, brochures and webcasts. FireLab agrees to use Customer Marks consistent with Customer ’s published guidelines with respect to such use. Any and all goodwill associated with these rights and the Customer Marks shall automatically vest in Customer.

 

5.2 Server Information & Analytics.

As part of providing the Subscription Customer acknowledges and agrees that FireLab may collect and use benchmarking, transactional or performance information or data provided to or collected by the Subscription or the FireLab servers making available the Subscription, including traffic, traffic patterns, activity, activity patterns, page impressions, field and record counts or types, and similar analytics that may be conducted on the Subscription or any Data on a de‐identified basis (collectively, “Server Information”). All Server Information shall be deemed FireLab Data and FireLab Confidential Information. For clarity, any analytics produced therefrom shall be anonymous as to Customer , its affiliates, and their Users and shall not reasonably be linked back to Customer, its affiliates or their Users and shall not contain Personal Information.

 

5.3 Ownership of Deliverables.

If Software Development Work is included in any Order Form and mutually agreed upon Statement of Work (a “Statement of Work”) to create any derivative versions (“Deliverables”) of the Services, Customer acknowledges and agrees that FireLab owns all of the intellectual property rights in the Deliverables and Documentation including without limitation any pre-existing materials and Confidential Information supplied by Customer for incorporation into such Deliverable and the software used to provide the Deliverables. Any modification, enhancement, derivative work, or other improvement of or based upon the Services, which includes a Deliverable, whether developed by FireLab or a Customer, will be FireLab exclusive property and Customer hereby irrevocably and in perpetuity assigns to FireLab all worldwide rights, title, and interest therein. FireLab grants to Customer a revocable, royalty-free, non-exclusive, non-transferable, non-assignable right to use any Deliverable if an Order Form has been executed, to the extent necessary to permit Customer to use the Deliverable in connection with the Services during the Term until such time that the Agreement ends or is terminated then Customer shall cease using any enhancements, modifications, adaptations and derivative works of the Services made by FireLab or Customer and Customer shall return all such products to FireLab immediately. Customer acknowledges that nothing in this Agreement will restrict or limit FireLab from performing similar services and creating similar Deliverables for any third party.

 

5.4 No Work Made for Hire.

(a) Customer agrees that no Work Product will be developed from a Deliverable as a “work made for hire.” As such, copyright and all other intellectual property rights vest with FireLab when the Deliverable is fixed in a tangible medium of expression. In the event that Customer is ever determined to own copyrights or other intellectual property rights in the Deliverable, Customer hereby:

(i) irrevocably assigns to FireLab all rights, title, and interest that Customer might have in the Deliverable; (ii) agrees to execute all documents necessary to implement and confirm the letter and intent of this Section; and (iii) irrevocably appoints FireLab as Customer ’s attorney‐in‐fact to execute any ownership documents to perfect such ownership interests of FireLab, such right being coupled with an interest.

(b) Deliverable as Confidential Information. The Deliverables are deemed to be FireLab’s Confidential Information hereunder and, except as permitted herein, must not be disclosed by Customer without FireLab’s express written approval. Customer may use the Deliverable for any internal business purpose and Customer may disclose the Deliverable to any contractor or FireLab of Customer that assists Customer with its internal business affairs and operations, provided that Customer first binds such third party contractor or FireLab to the same restrictions on use and disclosure of the Deliverable contained herein. Any other disclosure or publication of any Deliverable requires FireLab’s prior written consent.

 

6. Payment Terms.

6.1 Fees. Customer is responsible to pay FireLab for all monthly Fees (“Fees”) to subscribe to use the Services.By subscribing to use the Services, Customer agrees to pay FireLab’s applicable monthly fees.

 

6.2 BILLING.

(a) We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account (your “Billing Account”) for use of the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors by the Payment Processor. By choosing to use Payment Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Payment Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payments using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.

(b.) PAYMENT METHOD. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.

IF YOU WISH TO TERMINATE YOUR AUTHORIZATION FOR A PAYMENT METHOD OR CHANGE YOUR PAYMENT METHOD, CONTACT US AT: hello@firelabinc.com

(c) CURRENT INFORMATION REQUIRED

AS PART OF YOUR CONTINUED USE OF THE SERVICES YOU ARE REQUIRED TO PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL REQUIRED INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (INCLUDING PROVIDING A CHANGE IN BILLING ADDRESS, OR UPDATED CREDIT CARD NUMBERS, OR CREDIT CARD EXPIRATION DATES), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE ANY OF THE ABOVE MENTIONED INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAYMENT SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAYMENT SERVICES AS SET FORTH ABOVE.

(d) CHANGE IN AMOUNT AUTHORIZED. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.

(e) REAFFIRMATION OF AUTHORIZATION. Your non-termination or continued use of a Payment Service reaffirms that we are authorized to charge your Payment

Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Payment Service.

 

6.3 Taxes.

All Fees payable under the Purchase Order Form are net amounts and do not include taxes or duties of any kind. Customer will be responsible for, and will promptly pay, any applicable duties, sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or Customer’s receipt or access to the Services, excluding taxes based on FireLab’s gross or net income or franchise taxes. In the event that FireLab is required to collect or pay any tax for which Customer is responsible, Customer will pay such tax directly to FireLab. If Customer is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Customer will provide FireLab with any required documentation to verify its tax-exempt status with the applicable taxing authorities.

 

7 DISCLAIMER OF WARRANTIES.

THE SERVICES, FIRELAB API, FIRELAB TRADEMARKS, PLATFORM, SOFTWARE, SERVICE OFFERINGS, UPDATES AND OTHER PROPRIETARY AND CONFIDENTIAL INFORMATION OF FIRELAB (HEREINAFTER COLLECTIVELY REFERRED TO AS “FIRELAB’S SERVICES”) ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.

CUSTOMER ASSUMES ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF FIRELAB’S SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE AND PERFORMANCE OF, AND RESULTS OBTAINED FROM FIRELAB’S SERVICES AND THAT FIRELAB MAKES NO WARRANTY THAT: (i) FIRELAB’S SERVICES WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE; (ii) THE FIRELAB’S SERVICES, SOFTWARE, UPDATES OR DOCUMENTATION IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE; (iii) THERE WILL BE NO INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF FIRELAB’S SERVICES; OR (iv) FIRELAB’S SERVICES WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FIRELAB DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY STANDARDS, GUARANTEES, REPRESENTATIONS OR WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, REASONABLE CARE, WORKMANLIKE EFFORT, RESULTS, LACK OF NEGLIGENCE, ACCURACY OF INFORMATION OR RESULTS, TITLE AND NONINFRINGEMENT WITH RESPECT TO FIRELAB’S SERVICES, ANY WARRANTY OF THIRD PARTY SOFTWARE, PRODUCTS OR SERVICES, FUNCTIONALITY OF HARDWARE, SOFTWARE, FIRMWARE OR COMPUTER SYSTEMS OR ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE. CUSTOMER HEREBY ACKNOWLEDGES THAT FIRELAB’S SERVICES MAY NOT BE AVAILABLE OR MAY BECOME UNAVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF FIRELAB’S SERVICES, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, ACTIONS AND OMISSIONS OF THIRD PARTIES, OR ANY OTHER CAUSE REASONABLY BEYOND THE CONTROL OF FIRELAB THEREFORE, FIRELAB EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE.

TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.

8 Limitation of Liability.

CUSTOMER ASSUMES THE ENTIRE COST OF ANY DAMAGES RESULTING FROM CUSTOMER’S USE OF FIRELAB’S SERVICES, THE INFORMATION CONTAINED IN OR COMPILED BY FIRELAB’S SERVICES, THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY FIRELAB OR A THIRD PARTY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL FIRELAB OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPECIAL, DIRECT, EXEMPLARY, INDIRECT, RELIANCE, LIQUIDATED, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, REVENUE OR SAVINGS, BUSINESS INTERRUPTION, BUSINESS OPPORTUNITIES, LOSS OR CORRUPTION OF BUSINESS INFORMATION OR ANY PERSONAL OR CUSTOMER DATA, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION, IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS, BODILY HARM, EMOTIONAL DISTRESS OR LOSS OF LIFE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE FIRELAB’S SERVICES, OR THE INCOMPATIBILITY OF FIRELAB’S SERVICES WITH ANY HARDWARE, SOFTWARE OR USAGE, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF FIRELAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. IF ANY EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION OR ARBITRATOR AND FIRELAB BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED FIRELAB’S TOTAL LIABILITY TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE FEES PAID BY CUSTOMER TO FIRELAB DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES WHETHER IN CONTRACT, TORT OR OTHERWISE.

 

9.1 FireLab’s Indemnity.

FireLab shall, at its own expense, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Services or related Applications as used in accordance with the terms and conditions of this Agreement, infringe the copyrights, trade secrets, patents or trademarks of such third party and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. Excluded from these indemnification obligations are Claims to the extent arising from:

(a) use of the Services in violation of this Agreement or applicable law,

(b) use of the Services after FireLab notifies Customer to discontinue use because of an infringement claim,

(c) modifications to the Services not made by FireLab, or

(d) use of the Services in combination with any software, application or service not provided by FireLab. If a Claim is brought or threatened, FireLab shall, at its sole option and expense, use commercially reasonable efforts either:

(a) to procure for Customer the right to continue using the Services without cost to Customer;

(b) to modify or replace all or portions of the Services as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or

(c) if the remedies described in

(a) and (b) above are not commercially feasible, terminate the Agreement and provide to the Customer any pro-rata refund of the Services fees pre-paid under the Agreement for the remaining terminated portion of the Term. The rights and remedies granted to Customer under this Section 9.1 state FireLab’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of any third party.

 

9.2 Customer’s Indemnity.

Customer shall indemnify, defend, and hold harmless FireLab, its directors, officers, employees, agents, and affiliates, from and against all liabilities, damages, expenses and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim (collectively “Claims”) regarding or in connection with: (i) Any Authorized User’s breach of Customer’s obligations under Paragraphs 4 and 5; (ii) the Data, the Customer Data, Customer Content or any Customer trademarks or service marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or violates a law; (iii) any content or data provided by Customer, or its Authorized Users; (iv) any breach of this agreement by Customer or Authorized Users; (v) Customer, its Authorized Users and any third party’s use or misuse of the Services, Website and related Applications (the “App”) and Integrated Services; and (vi) Customer’s failure to pay all applicable taxes associated with Customer’s use of the Services or related Applications. Customer shall defend and hold FireLab harmless from and against liability for any Losses to the extent based upon such Claims.

 

9.3 Indemnification Procedures and Survival.

In the event of a potential indemnity obligation under this Section 9, the indemnified party shall:

(i) promptly notify the indemnifying party in writing of such Claim;

(ii) allow the indemnifying party to have sole control of its defense and settlement; and

(iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s expense, with the indemnifying party in the investigation and defense of such Claim. The indemnification obligations under this Section 9 are expressly conditioned upon the indemnified party’s compliance with this Section 9.3

 

10 Term; Subscription Renewals; Termination
10.1 Term; Renewals.

The term of this Agreement shall be for an initial period of one (1) year from the Effective Date and shall continue thereafter (the “Term”). The Term of each Service purchased under this Agreement shall continue for the initial term and shall automatically renew for successive twelve (12) month periods unless either party gives the other written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term

 

10.2. TerminationforCause.
10.2.1 ByCustomer.

Customer may terminate this Agreement, in whole or in part, by written notice to Fire Lab if Fire Lab

(i)commits a material breach of this Agreement, which breach is not cured within 30days after notice of the breach from Customer;

(ii)commits a material breach of this Agreement which is not capable of being cured within 30days; or

(iii)commits numerous breaches of its duties or obligations which collectively constitute a material breach of this Agreement. If Customer terminates this Agreement in part, the charges payable under this Agreement will be adjusted to reflect such partial termination. Termination by Customer will be effective as of the date specified in Customer’s notice.

 

10.2.3. Terminationfor Convenience.

Customer may terminate this Agreement in whole or inpart, for convenience and without cause at any time. Customer shall pay all fees due and owing to FireLab up until the termination date.

 

10.2.4 Terminationofan Order Form.

Except as stated in the applicable Order Form,a Customer may terminate an Order Form, in whole or in part, with or with out cause at any time by giving FireLabsixty (60)days’ written notice of such termination. All fees due and owing for Services performed by FireLab shall be paid by Customer to FireLab

 

10.2.5. Suspension for Delinquent Account.

FireLab reserves the right to suspend Customer’s and any of its Authorized Users’ access to and/or use of the Services for any accounts for which any payment is due but unpaid but only after FireLab has provided Customer at least one (1) delinquency notice, and at least ten (7) days have passed since the transmission of the first notice. Customer agrees that FireLab shall not be liable to Customer or any other third party for any suspension of the Services pursuant to this Section.

 

10.2.6. Survival

Sections 4, 5, 7, 8, 9, 10, 11 and 12 and any other provisions necessary to interpret the respective rights and obligations of the parties hereunder will survive any termination or expiration of this Agreement, regardless of the cause of such termination or expiration.

 

11. Non-Solicitation.

Customer agrees that during the Term and for a period of twelve (12) months thereafter, neither Customer nor any of its Affiliates shall solicit any employee or subcontractor of FireLab to leave his/her/its employment or engagement with FireLab, or hire or engage as an employee, consultant, independent contractor or in any other capacity, any employee or subcontractor of FireLab, without the prior written consent of FireLab. In the event that Customer violates the foregoing, it shall pay liquidated damages to FireLab in an amount equal to the first year’s compensation to such individual following such hire or engagement in violation of this provision. General recruitment activities which are in no way targeted at the employee’s or former employees of FireLab shall not be deemed a prohibited solicitation under this Section.

 

12 General Provisions.
12.1 Notices.

Notices between the parties will be by personal delivery, courier, facsimile transmission, or certified or registered mail, return receipt requested, and will be deemed given upon receipt at the address of the recipient party or ten (10) days after deposit in the mail. Addresses used will be the ones set forth above or such other address as a party hereto will notify the other in writing.

 

12.2 Severability.

In the event of any invalidity of any provision of this Agreement, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a mutually agreeable valid provision that most closely approximates the intent of the invalid provision.

 

12.3 Headings.

The headings in this Agreement are for convenience of reference only and have no legal effect.

 

12.4 No Third Party Beneficiaries.

This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

 

12.5 Assignment.

Customer shall not be permitted to assign any of its rights under this Agreement to any other entity (except the right to receive money) without the written consent of FireLab. FireLab shall be permitted to assign its rights under this Agreement to any successor entity of any kind.

 

12.6 Relationship.

Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, franchisee, agent or employee of the other.

 

12.7 Force Majeure.

Neither party will be liable to the other for a failure or delay in its performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control or by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, or other causes beyond such party’s reasonable control, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible.

 

12.8 Counterparts and Electronic Signatures.

This Agreement may be executed in counterparts. A signature transmitted via facsimile, scanned original or third party e-signature system will be deemed an enforceable signature for the purpose of demonstrating the signing party’s assent to the Agreement.

 

12.9 Entire Agreement.

This Agreement (including the Exhibits hereto) constitutes the entire understanding and agreement between the parties with respect to the subject matter addressed herein and supersedes any and all prior or contemporaneous oral or written communications with respect to such subject matter. In the event of a conflict between the foregoing terms and conditions and any Exhibits to this Agreement, the foregoing terms and conditions will control. The parties agree that in the event Customer utilizes a purchase order, any term therein which purports to modify or supplement the terms of this Agreement will be void with no force or effect. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies). A party does not waive its rights under this agreement by granting an extension or forbearance to another party.

 

12.10 Governing Law/Arbitration.

By using FireLab’s Website or Services, you agree that the laws of the State of Delaware without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and FireLab.

 

Disputes
ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF FIRELAB’S WEBSITE OR SERVICES SHALL BE SUBMITTED TO CONFIDENTIAL BINDING ARBITRATION IN NEW YORK COUNTY, NEW YORK, NEW YORK EXCEPT FOR INTELLECTUAL PROPERTY CLAIMS BROUGHT BY EITHER PARTY (WHICH FOR PURPOSES OF THIS SECTION DO NOT INCLUDE PRIVACY AND PUBLICITY CLAIMS) AND CLAIMS THAT MAY BE BROUGHT IN SMALL-CLAIMS COURT.

CONFIDENTIAL ARBITRATION UNDER THIS AGREEMENT SHALL BE RESOLVED EXCLUSIVELY UNDER THE COMMERCIAL ARBITRATION RULES THEN PREVAILING OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA’S CONSUMER RULES”), EXCLUDING ANY RULES AND PROCEDURES GOVERNING OR PERMITTING CLASS OR REPRESENTATIVE ACTIONS. THE RULES ARE AVAILABLE AT THE AMERICAN ARBITRATION ASSOCIATION’S WEBSITE.

YOU AND FIRELAB AGREE TO EXPRESSLY WAIVE ANY RIGHTS TO FILE CLASS OR REPRESENTATIVE ACTIONS OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS IN ANY JURISDICTION OR FORUM.
THE ARBITRATOR SHALL APPLY DELAWARE LAW, AND THE ARBITRATOR’S AWARD SHALL BE BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THERE SHALL BE NO APPEAL FROM ANY AWARD OF THE ARBITRATOR. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION UNDER THIS AGREEMENT SHALL BE JOINED TO AN ARBITRATION INVOLVING ­­­­­­ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. IF ANY PART OF THIS ARBITRATION PROVISION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL, THE REST OF THIS PROVISION SHALL REMAIN IN EFFECT.
IF THE ENTIRE ARBITRATION PROVISION IS FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE PARTIES CONSENT TO PERSONAL JURISDICTION AND EXCLUSIVE VENUE IN THE STATE COURT LOCATED IN NEW YORK COUNTY, NEW YORK, NEW YORK.

 

EXHIBIT A

 

IMPLEMENTATION AND TRAINING
Implementation and training services will be performed in accordance with FireLab’s customary practices for the level of services purchased. Implementation is performed remotely unless otherwise specified.

 

SUPPORT

Normal business hours of operation: Monday – Friday from 6:00am until 5:00pm (Pacific). (Holidays include New Years Day, President’s Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving and Christmas Day)

 

After Hours/Holiday support: Provided on a case by case basis.

 

MAINTENANCE

FireLab shall perform routine periodic maintenance in the normal course of business to the Services.

 

UPGRADES AND CUSTOMIZATIONS

Any upgrades or additional services and customization not set forth in Agreement to the Software required by Customer will be the subject of a separate agreement and charged as consulting hours at the current prevailing rate at an agreed upon rate.

 

SERVICE LEVEL AGREEMENT

The Services will achieve System Availability (as defined below) of at least 99.5% during each calendar year of the Subscription Term. “System Availability” means the number of minutes in a year that the key components of the Services is operational as a percentage of the total number of minutes in such year, excluding downtime resulting from

(a) scheduled maintenance,

(b) events of Force Majeure in the SaaS Agreement,

(c) malicious attacks on the system,

(d) issues associated with the Customer’s computing devices, local area networks or internet service,

(e) interruption in delivering the Services due to the third party vendor hosting center facility supporting the Services, or

(f) inability to deliver services because of acts or omissions of Customer or any user. FireLab reserves the right to take the Services offline for scheduled maintenance for which Customer has been provided reasonable notice and FireLab reserves the right to change its maintenance window upon prior notice to Customer. If FireLab fails to meet System Availability in any given year this Agreement is in effect, then Customer’s sole and exclusive remedy, and FireLab’ entire liability, is Customer receiving a one time credit for that year in an amount equal to 1% of the yearly fee for the affected Services for each 1% loss of System Availability, up to a maximum of Customer’s fees paid for the affected Services.

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