Last Updated: October 26, 2012
This Agreement regarding Terms and Conditions for Services (the "Agreement") is entered into by Wildfire Interactive, Inc. ("Wildfire") and the client identified on the Order Confirmation(s) which are governed hereby (the "Client"). Wildfire and Client agree as follows:
Whenever used in this Agreement with initial letters capitalized, the following terms shall have the following specified meanings:
"Affiliate" means, with respect to a party, an entity that directly or indirectly controls, is controlled by or is under common control with such party.
"Campaign" means social media promotions including but not limited to contests, sweepstakes, coupons, giveaways, voting, quizzes, virtual gifts, and instant wins.
"Client Data" means all data and information collected by Wildfire’s Platform, Product(s), or by Client using Wildfire’s Platform or Product(s), other than Restricted Data.
"Client Furnished Items" means all items furnished to Wildfire or uploaded to or utilized in connection with Wildfire’s Platform or Product(s) by Client pursuant to this Agreement, the applicable Order Confirmation(s) or as otherwise agreed upon by the Parties in writing from time to time, and may include, but is not limited to, any creation, design (including, without limitation, any copyrighted images, drawings, video, trademarks, or works of authorship or other prior creation), raw creative assets, such as .psd, .ai or other electronic files, written design and functionality specifications, and Campaign details provided by Client, that were conceived, created or reduced to practice by or for Client (alone or with others).
"Client Intellectual Property" means the Intellectual Property Rights in any Client Furnished Items as well as any derivative works thereof created either by Client or by Wildfire specifically for Client.
"Confidential Information" means information including, without limitation: (i) the terms of this Agreement and the negotiations related to it; (ii) the existence and nature of the Product(s) and Services furnished or developed under this Agreement, and other information related thereto; (iii) any Wildfire database and the information contained therein, including, without limitation, any user data; and (iv) any non-public information concerning either party’s business including, without limitation, information regarding advertising and promotion strategy or information related to the structure and operation of either party’s business (such as computer systems, hardware, software, source code, object code, algorithms, testing procedures, trade secrets, patents, copyrights, trademarks, procedures, ideas, interfaces, documentation, marketing, technical and financial information and plans and data related thereto).
"Intellectual Property Rights" means, on a world-wide basis, any and all now-known or hereafter-known tangible and intangible (a) rights associated with works of authorship including, without limitation, copyrights, copyright rights, and moral rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patents and other patent rights; (e) other rights with respect to inventions, discoveries, improvements, know-how, formulas, algorithms, processes, technical information and other technology; and (f) all other intellectual and industrial property rights of every kind or nature and however designated, whether arising by operation of law, contract, license or otherwise.
"Order Confirmation" means a written order, order form or any other contract that is agreed upon and signed by authorized representatives of both Parties for the performance of specific Services under this Agreement, collectively referred to as "Order Confirmation". Order Confirmation(s) may include, without limitation the following: (a) information about the Product(s), (b) a detailed description of the Services, (c) the schedule or term for performance of the Services, (d) the fees, reimbursable expenses and other compensation payable to Wildfire for the Services, and (e) a description of any services and Client Furnished Items to be provided by Client.
"Product Content" means all public-facing content of the Product(s), including, but not limited to, promotional copies, graphics, official rules, legal disclaimers, entry forms, materials uploaded by website visitors or social media participants, and other content or items used in or in connection with the Product(s).
"Restricted Data" means data (including without limitation IP addresses, social media website user IDs and cookie IDs) that is collected by Wildfire’s Platform or Product(s) whose confidentiality is required (i) by social media website policy or (ii) for the functioning of Wildfire’s Plaform or Product(s).
"Services" may mean one or more of the following: (i) access to Wildfire’s proprietary Platform and Product(s); or (ii) any custom work performed by Wildfire for Client including, without limitation, custom coding and custom design; or (iii) any project coordination with third parties performed by Wildfire for Client.
"Service Credit" means a five (5) minute increment of access to Wildfire’s Platform and Product(s).
"Term" means the period of time commencing from the execution date of Client’s first Order Confirmation and ending when terminated pursuant to Section 8 hereunder.
"Wildfire Created Materials" means the underlying technology of the Wildfire Platform and Product(s), and any materials created by Wildfire, wholly from Wildfire materials, and made available to clients in the use of Wildfire’s Platform or Product(s).
"Wildfire Intellectual Property" means any creation, design (including, without limitation, any technology including proprietary software, inventions, discoveries, works of authorship or other prior creation) that was conceived, created or reduced to practice by or for Wildfire (alone or with others).
"Work Product" means any and all customized reports, plans, specifications, documents, text, information, notes, training materials, forms, results and other items and deliverables that are specifically prepared and delivered by Wildfire for Client as part of the Services under this Agreement. Work Product only exists where Client purchases custom work including, without limitation, custom coding and custom design from Wildfire. Work Product does not include Wildfire’s Intellectual Property.
2.1 Schedule. Wildfire shall use best efforts to perform the Services in accordance with any schedule set forth in the applicable Order Confirmation(s). Wildfire shall not be liable for, or be considered to be in breach or default on account of, any delay or failure to perform any Services due to any cause or condition beyond its reasonable control (including, but not limited to, any Force Majeure event; and any act, omission or delay of Client or of any other person from whom Wildfire must receive content, materials, assistance or approvals of any kind before completing the Services).
2.2 Changes. Any change in the applicable Order Confirmation(s) will only be effective if in writing and signed by both Parties. Wildfire may make upgrades, modifications or improvements to the Platform or Product(s) at any time, as long as the above modifications do not breach Wildfire’s representations and warranties herein.
2.3 Work Product. Client shall promptly review all Work Product furnished to Client, if any, in connection with the Services and immediately notify Wildfire of any defect, deficiency, error or nonconformity known to or discovered by Client. If Client, after receipt of such item, does not notify Wildfire of any defect within the time described in the applicable Order Confirmation(s), then such item shall be deemed accepted. Wildfire shall use commercially reasonable efforts to correct any defects in the Platform that cause it to not substantially conform to the warranty set forth herein. Notwithstanding anything to the contrary, Wildfire shall not be responsible for any defect or nonconformance in the Services or the Platform that is due to or caused by any Client Furnished Items or any actions, services or items provided by Client or any third party, including but not limited to removal of applications by third party social media websites on which the Product(s) may run and breakdowns and/or outages of any applicable third party computer servers. Client shall own all copyrights and trademark rights in and to Work Product.
2.4 Maintenance. As part of keeping the Platform and Product(s) technology updated and functional, Wildfire may perform Routine Maintenance and Urgent Maintenance (collectively "Maintenance"). Wildfire will need to perform routine enhancements, upgrades and maintenance ("Routine Maintenance") of the Platform and/or Product(s) that will or is likely to result in the downtime of the Platform and/or Product(s), during which all or certain functions of the Platform and/or Product(s) will not be available. If Wildfire determines that immediate maintenance on the Platform and/or Product(s) is required ("Urgent Maintenance"), Wildfire can perform such Urgent Maintenance at any time and for any period of time (as determined by Wildfire).
2.5 Uptime Commitment. Wildfire shall ensure an uptime commitment of 99.5% of the Platform (excluding downtime due to Maintenance, Force Majeure events, or Client controlled devices or servers) measured over each month of the Agreement. In the event that Wildfire’s actual uptime is lower than 99.5% for any monthly period (a "Downtime Period"), Wildfire shall issue Service Credit to Client’s account for the number of five (5) minute increments equal to or greater than the unavailability of the Platform or Product(s). In order to receive Service Credits, Client must notify Wildfire within thirty (30) days after the end of the Downtime Period. In the event of three (3) consecutive Downtime Periods, Client will have the right to terminate this Agreement with notice to Wildfire, which right will expire thirty (30) days after the end of the third Downtime Period. The remedies set forth in this Section 2.5 are Client’s sole remedies for any Downtime Period(s).
3.1 Compensation Amount. Client shall pay Wildfire for the Services in accordance with the rates, charges and other amounts specified in the applicable Order Confirmation(s), within the specified number of days. Late payments that are not disputed in good faith bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).
3.2 Taxes. The fees, reimbursable expenses, compensation and other amounts payable to Wildfire under this Agreement are exclusive of taxes. Client will pay all taxes and other government charges (except for taxes on Wildfire’s income), and reasonable expenses and outside attorneys’ fees Wildfire incurs in collecting late payments that are not disputed in good faith.
4.1 Wildfire Warranty. Wildfire represents and warrants that (a) it is a validly existing business entity, duly licensed, (b) it is qualified to carry on its business/ operations and perform its obligations, (c) it has binding authority to enter into this Agreement, (d) no prior agreements prohibit it from entering into or performing this Agreement, (e) it has all rights, licenses, permits, qualifications and consents necessary to perform its obligations, (f) it will perform its obligations under this Agreement in a professional and workmanlike manner in accordance with generally accepted industry standards, (g) Wildfire Created Materials shall be free of any Wildfire created "virus," "Trojan Horse," "worm," "self-destruction," "disabling" device or any other intentional malicious code as such terms are understood in the computer industry, which could intentionally impair Client’s use of the Platform or Product(s) and (h) Wildfire warrants that during the Services the Platform and Product(s) will be free of material defects, excluding coding updates, and operate substantially in accordance with the specifications set forth herein or in an Order Confirmation.
4.2 Client Warranty. Client represents and warrants that it (a) will be solely responsible for (i) the management and administration of the Product Content; (ii) obtaining the Product Content and Client Furnished Items and all rights necessary to use the Product Content and Client Furnished Items, (iii) assuring that the Product Content and Client Furnished Items fully comply with all applicable laws, rules and regulations; (b) will not (i) license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Services available to any unauthorized user, including but not limited to, by "mirroring" or "framing" any part of the Platform or Product(s), or by creating internet links to the Platform or Product(s) which include log-in information, user names, passwords, and/or secure cookies; (ii) modify or make derivative works based upon the Services or the Product Content other than for the purpose stated in the applicable Order Confirmation(s); (iii) "frame" or "mirror" any Product Content on any other unauthorized server or wireless or Internet-based device; (iv) reverse engineer the Services; (v) access the Services in order to build a competitive product or service; (vi) access the Services if Client is Wildfire’s direct competitor, except with Wildfire prior written consent; (vii) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; (viii) attempt to gain unauthorized access to the Platform or its related systems or networks; (ix) attempt to re-identify or unanonymize data that Wildfire provided in an anonymous format or (x) use the Platform for any purpose other than those expressly authorized under this Agreement; and (c) will not use the Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (v) collect highly sensitive personal information (such as passport numbers, religion, credit card numbers, bank account numbers or any other sensitive personal data as defined by applicable privacy laws; (vi) attempt to gain unauthorized access to the Services or its related systems or networks; or (vii) use the Services to engage in illegal activity, or cause immediate, material or ongoing harm to Wildfire or others.
4.3 Mutual Indemnity. Each party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other party and its officers, directors, employees and agents (each, an "Indemnified Party") from all third-party claims or liabilities (including without limitation reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of or related to the Indemnifying Party’s (i) breach or alleged breach of this Agreement (including, for purposes of clarification, any Order Confirmation) or (ii) infringement of a third party’s U.S. patent, trademark, trade secret or copyright in connection with (a) with respect to Wildfire, the Platform and Product(s) used by Wildfire to provide the Services hereunder, and (b) with respect to Client, the Client Furnished Items or other materials provided by Client to Wildfire or otherwise provided and utilized by Client in connection with the Services hereunder (the indemnification obligation of each party described in this clause (ii), the "IP Infringement Obligation"). The previous sentence states the sole liability of the Indemnifying Party, and the sole remedy of the Indemnified Party, with respect to any third-party claim arising out of the Indemnifying Party’s breach of this Agreement or intellectual property infringement. The Indemnified Party must (i) promptly notify the Indemnifying Party in writing of the third-party claims (provided that failure of the Indemnified Party to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been damaged by the failure); (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter and (iii) give the Indemnifying Party primary control of the defense of the matter and negotiations for its settlement. The Indemnified Party may at its expense join in the defense with counsel of its choice. The Indemnifying Party may enter into a settlement only if it (A) involves only the payment of money damages by the Indemnifying Party and (B) includes a complete release of the Indemnified Party; any other settlement will be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed). Wildfire’s IP Infringement Obligation will not apply to claims to the extent arising from (i) Client’s use of the Services if the use violates this Agreement or a third party’s U.S. patent, trademark, trade secret or copyright; or (ii) the combination, operation or use of the Services with any product or service not provided or authorized in writing by Wildfire. Client’s IP Infringement Obligation will not apply to claims to the extent arising from Wildfire’s provision of the Services in violation of this Agreement or a third party’s U.S. patent, trademark, trade secret or copyright. If the Services become, or in Wildfire’s reasonable opinion are likely to become, the subject of an intellectual property infringement claim, then Wildfire will promptly notify Client and, at its sole option and expense, may either: (x) procure the right to continue providing the Services as contemplated by this Agreement; (y) modify the Services to render them noninfringing (provided that modification does not adversely affect use of the Services); or (z) replace the Services with functionally equivalent, noninfringing services. If none of the foregoing options is commercially practicable, then each party will have the right to terminate each affected Order Confirmation.
4.4 DISCLAIMER; LIMITATION OF LIABILITY. EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT (IT BEING UNDERSTOOD THAT, FOR PURPOSES OF CLARIFICATION, THE FOREGOING WILL NOT LIMIT EITHER PARTY’S IP INFRINGEMENT OBLIGATION SET FORTH HEREIN), MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (a) EXCEPT (i) FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES UNDER THIS AGREEMENT AND (ii) WITH RESPECT TO BREACHES OF SECTION 7 OF THIS AGREEMENT, NO PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE; AND (b) EXCEPT WITH RESPECT TO (i) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (ii) EACH PARTY’S INTENTIONAL MISCONDUCT AND (iii) CLIENT’S PAYMENT OBLIGATIONS UNDER THE APPLICABLE ORDER CONFIRMATIONS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO WILDFIRE DURING THE 12 MONTHS BEFORE THE DATE WHEN THE LIABILITY AROSE. IN ADDITION, Wildfire is not liable for (x) the removal or alteration of applications, personalizations, web sites, promotion customization settings, or other alterations of the Platform, Product(s) or Services, (Y) for the collection, use or disclosure of CLIENT data, IN THE CASe of BOTH clause (X) and (y), by Client, agents of Client, users or other third parties, OR (Z) THE CONTENT OR APPLICATION OF RULES OR CONDITIONS GOVERNING CLIENT PROMOTIONS.
5.1 Proprietary Rights. Subject to the Terms and Conditions of this Agreement, Wildfire grants to Client a non-exclusive right, during the Term, to access and use the Wildfire Platform and Product(s) as contemplated by the applicable Order Confirmation(s). The Wildfire name, the Wildfire logo, and the product names associated with the Services are trademarks of Wildfire, and no right or license is granted to use them. As between Client and Wildfire, Wildfire is the exclusive owner of all right, title and interest in and to the Wildfire Platform and Product(s) and any and all Intellectual Property Rights therein.
All right, title, and interest in and to Wildfire’s Intellectual Property, including without limitation all Intellectual Property Rights, in and to the Platform (including without limitation any modifications thereto made under this Agreement) and any other documents, software, code, forms, text, graphics, items, or materials used, developed or furnished by Wildfire in connection with this Agreement shall be owned by and remain solely with Wildfire. All documents, software, materials and assets, including Client Intellectual Property, furnished to Wildfire by Client are owned by and shall remain solely with the Client. Wildfire hereby grants to Client a nonexclusive right to access the Platform and Product(s) for the duration of the Services identified in the Order Confirmation(s), solely as may be necessary in connection with the operation of the Product(s) as contemplated under such Order Confirmation(s). Client may sublicense such rights to the operator accessing the Platform and Product(s) as necessary to carry out Client’s use of the Services, provided that such sublicense is subject to the terms, conditions, and limitations set forth in this Agreement.
5.2 Data Ownership. As between Client and Wildfire, Client will own all Client Data derived from its use of the Services; provided that Wildfire may use and disclose such Client Data solely (i) as aggregate Services statistics, which will not include personally identifiable information or information that identifies or would reasonably be expected to identify Client or any user, (ii) to provide the Services and enforce its rights under this Agreement (it being understood and agreed that non-aggregated Client Data will not be used or disclosed to any third party by Wildfire (except as otherwise expressly permitted by this Agreement or the applicable Order Confirmation) without Client’s written consent) and (iii) if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to Client and using commercially reasonable efforts to provide Client with the opportunity to seek a protective order or the equivalent (at Client’s expense)). In all cases, Client shall be solely responsible and liable for ensuring that its collection, sharing and use of Client Data fully complies with all applicable laws, rules, regulations, and social media website policies. Client acknowledges that Wildfire’s use of Restricted Data is subject to applicable laws and social media website policies and Client is not entitled to Restricted Data.
Client hereby grants to Wildfire a nonexclusive, royalty-free license to use, host, distribute, reproduce, perform, display, modify, and create derivative works of the Client Furnished Items only as reasonably necessary to perform the Services. Except for the foregoing, no right, title or interest in or to the Client Furnished Items (including any Intellectual Property Rights therein) is transferred to Wildfire.
In the course of this Agreement, one party may disclose ("Disclosing Party") certain non-public, proprietary and Confidential Information to the other party ("Receiving Party") in connection with the Platform and promotion ideas and plans. Each party shall in good faith take reasonable steps to protect the Confidential Information of the other party from any use, reproduction, disclosure or distribution during and after this Agreement except as specifically authorized by this Agreement. The Parties agree not to disclose or permit access to the other party’s Confidential Information to any third party (other than consultants or Affiliates subject to confidentiality agreements) without the Disclosing Party’s prior written permission; to ensure that access to Confidential Information is restricted to those employees and consultants of the Receiving Party necessary to the provision of the Services; and to ensure that any of the Receiving Party’s employees and consultants having access to the Confidential Information are advised of its confidential and proprietary nature, and that they are prohibited from utilizing or revealing such Confidential Information or from taking any action otherwise prohibited under this Agreement.
Confidential Information shall not include any information that: (i) is wholly independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information; (ii) was known to the Receiving Party without confidential limitation at the time of disclosure, as evidenced by the Receiving Party’s written records; (iii) the Receiving Party is authorized in writing by the Disclosing Party to publicly disclose; (iv) is generally known or becomes part of the public domain through no fault of the Receiving Party; (v) is provided to the Receiving Party by a third party without breach of any separate non-disclosure agreement or (vi) is required to be disclosed in the public record of any administrative or judicial proceedings; provided, however, that in the event that the Receiving Party is requested or becomes legally compelled to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall provide the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Section, and the Receiving Party shall cooperate with the Disclosing Party in any effort it undertakes to obtain a protective order or other remedy.
8.1.a. Termination for Breach. Client may terminate this Agreement or an individual Order Confirmation upon written notice at any time if Wildfire fails to cure a material breach of this Agreement within thirty (30) days after written notice of the breach from Client. In the event of such termination, Client shall be obligated to pay Wildfire the agreed upon compensation attributable to the Services rendered prior to such termination.
8.1.b. No Active Order Confirmation Termination. In the event that no Order Confirmation is in effect at a particular time, Client shall have the right to terminate this Agreement for any reason or no reason effective immediately upon providing written notice to Wildfire.
8.1.c. Automatic Termination. Notwithstanding any other provision of this Agreement, this Agreement shall immediately and automatically terminate, without the necessity of notice from either party to the other, in the event that either party (a) becomes unable to pay its debts when due, (b) makes any assignment for the benefit of its creditors, (c) files any petition under the bankruptcy or insolvency laws of any jurisdiction, country or place, (d) has or suffers a receiver or trustee to be appointed for its business or property or (e) is adjudicated a bankrupt or insolvent.
8.1.d. Suspension for Improper Use. Wildfire may, with reasonably contemporaneous oral or written notice to Client, suspend Client’s access to the Services if Wildfire reasonably concludes that Client is using the Services to engage in denial of service attacks, spamming, or any of the improper uses set out in Section 4.2.b, or using the Services to engage in illegal activity, and/or Client’s use of the Services is causing immediate, material and ongoing harm to Wildfire or others. If Wildfire suspends Client’s access to the Services, both Parties shall use commercially reasonable efforts to resolve the issues causing the suspension of Services. Wildfire shall not be liable to Client nor to any third party for any suspension of the Services under such circumstances as described in this Section 8.
8.2 Effect of Termination. For Order Confirmations other than for subscription services, if this Agreement or any Order Confirmation is terminated pursuant to and in accordance with this Section 8, in the event that Wildfire has fully performed its obligations under the relevant Order Confirmation(s) as of the effective date of termination, Client shall pay to Wildfire all fees, reimbursable expenses, compensation or other amounts payable for the Services performed under the terminated Agreement or the Order Confirmation(s). For all Order Confirmations for subscription services, and except for termination resulting from Wildfire’s uncured breach, if this Agreement or any Order Confirmation(s) is terminated pursuant to and in accordance with this Section 8, Client is not entitled to a refund of fees and payments previously rendered.
8.3 Survival. Except as set forth herein, any and all liabilities accrued prior to the effective date of the termination shall survive; and the Parties' respective rights and obligations under Sections 3, 4, 5, 6, 7, 8, 9 and 11 of these Standard Terms with respect to any Services covered by the terminated Agreement or Order Confirmation(s) shall survive. Termination of the Services shall include, without limitation, termination of the use of the Platform and any hosting services for pages, promotions or other assets created with the Platform. Notwithstanding the foregoing, Client will retain access to Client’s account and the ability to download and delete data, files and creative assets created by and for the Client prior to the termination of this Agreement or the applicable Order Confirmation(s) for a period of ninety (90) days following the natural completion of the last Order Confirmation(s) under this Agreement. Thereafter, Wildfire will have the right to delete any residual data residing on its servers.
The Platform regularly undergoes quality assurance checks to ensure that it conforms to industry-standard physical and electronic security measures, and is regularly verified by a third-party privacy services provider. Information collected is encrypted using secure socket layer (SSL) technology, except where such technology is not supported by third parties.
11.1 Independent Contractor; Third Parties. This Agreement does not constitute a contract of employment, franchise, partnership, agency or joint venture. Wildfire is an independent contractor, not an employee or agent, of Client. The Parties hereby agree that no person or entity is an intended third-party beneficiary to this Agreement. Further, the Parties agree that no person or entity shall have the power to enforce any provision of this Agreement or shall have a cause of action under this Agreement except the signatories hereto."
11.2 Notices. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if done so in writing and delivered (a) in person, (b) via electronic mail ("e-mail"), if to Client, properly addressed to the e-mail address set forth on any Order Confirmation, and if to Wildfire, properly addressed to email@example.com or (c) mailed, properly addressed and stamped with the required postage, to Wildfire at the address below or, if to Client, at the address specified in a recent Order Confirmation. Notice of a legal proceeding requires either (1) delivery by overnight courier with a follow up phone call or (2) personal delivery to fulfill the notice requirement. Either party may from time to time change its address by giving the other party notice of the change in accordance with this Section.
Wildfire Interactive, Inc.
1600 Amphitheatre Parkway
Mountain View, CA 94043
11.3 Non-Assignment; Non-Exclusivity. Neither party shall assign any of its rights under this Agreement, directly, by operation of law, or otherwise, without the prior written consent of the other party, except that either party may assign all of its rights and obligations hereunder (including under all Order Confirmations) to an Affiliate or any entity that acquires all or substantially all of its assets or capital stock. Subject to the foregoing restriction on assignment, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and assigns. This Agreement is nonexclusive and will not be construed to prevent either party from entering into any similar agreement or arrangement with any third party.
11.4 Nonwaiver; Headings & Captions. Any failure by either party to insist upon or enforce strict performance by the other of any of the provisions of this Agreement, or to exercise any right or remedy under this Agreement, shall not be construed as a waiver or relinquishment to any extent of the party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same shall be and remain in full force and effect. All section headings and titles contained in this Agreement are for convenience only and shall not affect the meaning of this Agreement.
11.5 United States Government Clients. As with all clients, Wildfire’s Services are provided with restricted rights. If Client is an agency or unit of the U.S. Government ("Government"), the Wildfire Services are provided for ultimate Government use solely in accordance with the following provisions of the Federal Acquisition Regulation ("FAR") and supplements thereto, including the Department of Defense ("DoD") FAR Supplement ("DFARS"): Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR §12.211 (Technical Data) and FAR §12.212 (Computer Software) and, for DoD transactions, DFARS § 252.227-7015 (Technical Data – Commercial Items) and DFARS § 252.227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If Government has a need for rights not conveyed under these terms, it must negotiate with Wildfire to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
11.6 Law and Jurisdiction. This Agreement and the rights and obligations of the Parties including all non-contractual obligations arising under or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to choice or conflicts of law rules. In the event of a dispute, claim or controversy arising out of or relating to this Agreement or any Order Confirmation, the Parties irrevocably agree to submit such dispute, claim or controversy to a court of competent jurisdiction in Santa Clara County, California, and hereby waive any venue objections.
11.7 Entire Agreement; Severability; Counterparts. This Agreement (including all Order Confirmations) constitutes the entire agreement, and supersedes any and all prior agreements, between Wildfire and Client with respect to the Services. No amendment, modification or waiver of any of the provisions of this Agreement shall be valid unless set forth in a written instrument signed by the party to be bound thereby. If any one or more of the provisions contained in this Agreement shall for any reason be held to be unenforceable by law, the unenforceable portion shall be stricken leaving the remaining portions of the Agreement in full force and effect. Any terms deemed excessively broad as to time, duration, scope, activity or subject, it shall be construed, by limiting and reducing it so as to be enforceable to the extent compatible with the applicable laws. Order Confirmations or other contracts governed by this Agreement may be executed in counterparts and delivered in electronic form by facsimile transmission, email or in original hard copy. Each such counterpart shall be deemed an original and when considered together shall be one agreement.
11.8 Order of Precedence; Interpretation. If there is a conflict between the terms of this Agreement and those set forth in an Order Confirmation, such conflict will be resolved in favor of the Order Confirmation. The term "include" (and all of its variants), when used in this Agreement, will be interpreted to be followed by the phrase "without limitation" in all cases.
11.9 Force Majeure. Neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform, in full or in part, its obligations hereunder, provided that there is due diligence in attempted performance under the circumstances and that such delay or failure is due to fire, earthquake, unusually severe weather, strikes, government sanctioned embargo, flood, act of God, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier, or any other circumstance reasonably beyond the control of the party to be charged, including outages or problems with third party servers. In addition, the Affected Party will (i) exercise commercially reasonable efforts to mitigate damages to the other party and to overcome the Force Majeure Event and (ii) continue to perform its obligations under this Agreement to the extent it is able. If any failure or delay caused by a Force Majeure Event continues for ten (10) days or longer, the party unaffected by such event will have the right to terminate this Agreement and receive a refund of all pre-paid fees for any performance not yet delivered.
11.10 Affiliates. Affiliates of Client shall be entitled to enter into Order Confirmations, with Wildfire’s written consent, and to purchase Services from Wildfire pursuant to this Agreement. If an Affiliate of Client enters into Order Confirmation(s) hereunder, Wildfire agrees to look solely to such Affiliate with respect to any payment obligations arising as a result of such Affiliate’s participation in this Agreement, and with respect to any and all breaches of this Agreement by such Affiliate, its acts or omissions in connection with this Agreement, and any loss, damage, liability or expense incurred by Wildfire as a result of such Affiliate’s participation in this Agreement (collectively, for each Affiliate of Client, "Affiliate Liability"). Wildfire shall provide the Services to each such Affiliate of Client in accordance with the terms and conditions set forth in this Agreement and any applicable Order Confirmation(s).
11.11 Export Compliance. The rights to access Wildfire’s Services, granted herein, are subject to all applicable export laws, regulations, orders, or other restrictions. Wildfire’s Platform, Product(s), and any other Services Wildfire performs, as well as any derivatives thereof, may be subject to export laws of the United States and other jurisdictions. Each party represents that it is not named on any United States government denied-party list. Client shall not permit use or access to Wildfire’s Services in a United States embargoed country, or in violation of any United States export law or regulation.
11.12 Anti-Corruption; Anti-Bribery. Client has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Wildfire’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Client learns of any violations of the above restriction, Client shall use reasonable efforts to promptly notify Wildfire’s Legal Department.