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KICKFIRE API SERVICES THIRD PARTY PLATFORM AGREEMENT

 

This KICKFIRE API SERVICES THIRD PARTY PLATFORM AGREEMENT, together with each applicable Exhibit as defined below (collectively referred to as the "Agreement") is a legal contract between you ("CUSTOMER") and IDG Communications, Inc., a Massachusetts corporation doing business as KICKFIRE®, ("KICKFIRE"). The Agreement governs CUSTOMER's use of certain KICKFIRE services as described below. CUSTOMER's use of these services is conditional on CUSTOMER's acceptance of each of the terms of this Agreement in the manner provided below and on entering into separate use and pricing Exhibits in a form and manner acceptable to KICKFIRE and containing economic and other terms pertaining to use of these services. All references to "Exhibit(s)" in this Agreement are made with respect to Exhibits in a separate, related agreement to be executed by KICKFIRE and CUSTOMER. Any person entering into this Agreement on behalf of any business or other entity represents that s/he is of legal age to form a binding contract and has full legal authority to enter into this Agreement. KICKFIRE and CUSTOMER may also be referred to as "Party" and/or "Parties" below. It is therefore agreed as follows:

  1. KICKFIRE SERVICES
    1. Subject to the terms and conditions of this Agreement, together with each of its exhibits, and for so long as it is in effect, CUSTOMER may internally access and use KICKFIRE’s KickFire API Service, consisting of the then-current KickFire API version and all associated concepts, software, technology, data and designs in a version for use in conjunction with certain third party analytics platforms described in an Exhibit to this Agreement (collectively “KickFire API Service”), as made available on KICKFIRE’s then-current KickFire web site for users. This access and use is limited to CUSTOMER’s lawful business purposes as described in an Exhibit to this Agreement and must be conducted in a way that conforms to all federal, state, local and foreign applicable laws, regulations, treaties and ordinances, including without limitation those pertaining to privacy and restrictions on and/or requirements for data use and/or disclosure, data protection and similar matters, and third party intellectual property rights, including without limitation those of the above-referenced third party analytics platforms providers. It is further provided that: (1) KickFire API Service, in whole or in part, may not be directly or indirectly accessed or used by or on behalf of CUSTOMER to design, develop, or in any other way create the concepts, specifications or content of any product or service that is similar to, a derivative work of and/or an effective market substitute for (i) KickFire API Service and/or (ii) any other KICKFIRE products and services of any kind then in existence, in whole or in part and (2) any data of any kind provided or generated by KickFire API Service are confidential and proprietary information and trade secrets of KICKFIRE and its suppliers, are solely for CUSTOMER’s internal and lawful access and use and may not in whole or in part be cached, copied, uploaded, published, disclosed, distributed, licensed, sold, transferred or otherwise exploited in any way by or on behalf of CUSTOMER, unless explicitly allowed in a hand or Pandadoc (or equivalent signed writing by KICKFIRE or in an Exhibit to this Agreement. KICKFIRE reserves the right to add markers or other identifiers to its data to assist in identifying any wrongful use thereof.
    2. CUSTOMER may not permit third parties to engage in any activities permitted under this Section except for its subsidiaries who agree in writing in a form acceptable to KICKFIRE to be bound by this Agreement. CUSTOMER's rights under this Agreement are personal, limited to CUSTOMER alone and, except as expressly provided herein, indivisible, nontransferable and non-assignable.
    3. CUSTOMER will not modify, create derivative works of, copy, reverse engineer, reverse assemble or reverse compile KickFire API Service or any of its components nor will CUSTOMER use any mechanical, manual, electronic, or other methods to trace, de-compile, dis-assemble, or identify the source code of any software components of KickFire API Service, in whole or in part.
    4. CUSTOMER will not use KickFire API Service in conjunction with (1) any unlawful (whether by statute, contract or otherwise) automated data collection methods, spiders, robots, crawlers, data mining tools, scrapers and the like or (2) any spamming, sending viruses or other harmful code or engaging in any denial of service and/or other attacks or unlawful, fraudulent, invalid or deceptive actions of any kind. Notwithstanding any other provisions of this Agreement, KICKFIRE may, without notice or liability to CUSTOMER, immediately terminate this Agreement if it has reasonable cause to suspect that CUSTOMER has engaged in any CUSTOMER conduct prohibited under this Section 1.
    5. KickFire API Service does not include, nor will CUSTOMER have any rights to access or use, any new KICKFIRE products or services as defined by KICKFIRE in its sole discretion, whether identified by new names or otherwise, even if the same are related to or enhancements of KickFire API Service.
  2. SUPPORT. For so long as this Agreement is in effect, CUSTOMER will receive KICKFIRE's then-current support for KickFire API Service as it is generally made available to other KickFire API Service users at no charge.
  3. PRICE AND PAYMENT. CUSTOMER will pay KICKFIRE the amounts stated in Exhibit A to this Agreement under the terms stated in that Exhibit. Except as stated in this Agreement, CUSTOMER’s payments are non-refundable and CUSTOMER’s duty to pay all amounts due KICKFIRE is unconditional. CUSTOMER will pay a late fee of the lesser of two and one half percent (2 1/2%) per month or the legal maximum rate on any past due unpaid balance CUSTOMER agrees to provide credit card information sufficient to permit KICKFIRE to charge all amounts due under this Agreement pursuant to CUSTOMER's credit card, unless other payment arrangements are agreed to by KICKFIRE and CUSTOMER in writing, including via email between appropriate finance department personnel. Unless otherwise agreed in writing, all amounts due under this Agreement are due on billing or credit card charging by KICKFIRE, as the case may be. CUSTOMER hereby authorizes KICKFIRE to charge its credit card listed with KICKFIRE for all charges due under this Agreement or if no credit card is so listed, amounts due will be paid in the manner agreed upon by the Parties as provided above. If CUSTOMER fails to pay any invoices when due, KICKFIRE may, in its discretion and in lieu of its obligations to provide notice and a cure period under Section 7, suspend or terminate its obligation to provide CUSTOMER with KickFire API Service. Fees are exclusive of all taxes, and KICKFIRE will invoice CUSTOMER for any taxes it is required to collect or remit, other than (a) KICKFIRE’S income taxes or franchise taxes and (b) VAT or other indirect sales tax for which CUSTOMER has provided a valid tax exemption or direct pay certificate. CUSTOMER will provide KICKFIRE evidence of any taxes withheld as required by local law.
  4. PROPRIETARY RIGHTS AND RELATED MATTERS
    1. Title to and ownership of KickFire API Service, in whole and in part and whether in electronic, printed, or other forms and including without limitation all revisions, enhancements, extensions, translations, know-how, patents, patent rights, copyrights, processes, business methods, business models, moral rights, trade secrets, privacy rights, publicity rights, logos, designs, trademarks, trade names and all other U.S. and foreign intellectual property rights and interests of any kind in and/or associated with KickFire API Service in any and all forms, are and will remain the sole and exclusive property of KICKFIRE and its licensors and CUSTOMER acknowledges and agrees that it has no express or implied rights or interests in any of the same except as stated in this Agreement. Except as stated in this Agreement, CUSTOMER will have no rights of any kind in or to KickFire API Service. The rights granted in this Agreement do not include any rights under patents of third parties.
    2. CUSTOMER and others on its behalf may from time to time provide suggestions, error corrections, improvements, enhancements, comments or other feedback (collectively "Feedback") to KICKFIRE with respect to KickFire API Service and/or other matters. It is agreed that all Feedback will be deemed given voluntarily and without expectation of receiving anything in return. Feedback, even if designated as confidential by CUSTOMER, will be the sole property of KICKFIRE and will not create any confidentiality or other obligation of KICKFIRE. KICKFIRE is at all times free to use, disclose, sell, reproduce, license and otherwise distribute, and exploit all Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
  5. LIMITATIONS OF WARRANTY AND LIABILITY. ALL OF THE PROVISIONS OF THIS SECTION 5 WILL APPLY EXCEPT TO THE EXTENT PROHIBITED BY LAW. ALL EXPRESS, STATUTORY AND/OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS, QUIET ENJOYMENT, SATISFACTORY QUALITY, FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE, ARE EXPRESSLY DISCLAIMED AND EXCLUDED. KICKFIRE WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES CLAIMING THROUGH CUSTOMER EXCEPT TO THE EXTENT THAT SUCH LIABILITY IS EXPRESSLY STATED IN THIS AGREEMENT. THE SERVICES ARE MADE AVAILABLE FOR CUSTOMER'S ACCESS AND USE IN "AS IS" CONDITION WITHOUT ANY WARRANTIES OF ANY KIND THAT THEY WILL BE ERROR-FREE, WILL OPERATE CONTINUOUSLY, WILL BE FREE OF HARMFUL CONTENT, WILL BE SECURE, OR THAT DATA PROVIDED WILL BE CURRENT. NEITHER PARTY WILL BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY CONSEQUENTIAL, ECONOMIC, PUNITIVE OR INDIRECT DAMAGES OR LOST REVENUE, LOSS OF GOODWILL, DAMAGE TO REPUTATION, LOST PROFITS, LOSS OF USE, LOST DATA, COST OF SUBSTITUTE SERVICES OR ANY INVESTMENTS OR EXPENSES OF THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. WITH THE EXCEPTION OF PAYMENTS DUE TO KICKFIRE HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE OR OBLIGATED IN ANY MANNER TO THE OTHER PARTY OR OTHERS FOR ANY AMOUNT IN EXCESS OF THE PAYMENTS MADE TO KICKFIRE UNDER THIS AGREEMENT WITHIN TWELVE (12) MONTHS OF THE ACCRUAL DATE OF THE RESPONSIBLE PARTY'S LIABILITY, INCLUDING WITHOUT LIMITATION ANY AND ALL LIABILITY ARISING FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT AND/OR SERVICE LIABILITY, AND ANY OTHER STATUTORY, CONTRACT, TORT AND/OR ANY OTHER THEORIES OF LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE. THIS SECTION ALLOCATES THE RISKS BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OF THE SERVICES, IS AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES AND WILL BE EFFECTIVE NOTWITHSTANDING THE FAILURE OF PURPOSE OF ANY ESSENTIAL AND/OR OTHER REMEDY HEREIN.
  6. INDEMNITY
    1. Subject to and as limited by each and every provision of Section 5, above, including limitation of liability and exclusion of certain damages, CUSTOMER will indemnify and hold harmless KICKFIRE and its officers, directors, employees, contractors and representatives, from all losses, damages, liabilities, costs, expenses, and reasonable attorney's fees paid and/or incurred by these parties as a result of any demand, claim, suit, award or judgment arising from (1) CUSTOMER's access to, distribution of and/or use of the Services and all information generated through the Services; (2) CUSTOMER's breach of any terms or conditions of this Agreement or applicable law and (3) any disputes and/or legal process of any kind between CUSTOMER and any third party.
    2. Subject to and as limited by each and every provision of Section 5, above, including limitation of liability and exclusion of certain damages, KICKFIRE will indemnify and hold harmless CUSTOMER and its officers, directors, employees, contractors and representatives, from all losses, damages, liabilities, costs, expenses, and reasonable attorney's fees paid and/or incurred by these parties as a result of any demand, claim, suit, award or judgment arising from (1) infringement of any copyright, patent, trade secret or other intellectual property right by the Services; (2) KICKFIRE's breach of any terms or conditions of this Agreement or applicable U.S. law and (3) any disputes and/or legal process of any kind between KICKFIRE and any third party.
    3. With respect to all claims for indemnity under Sections 6(a) and (b) above, the indemnifying Party will have the exclusive right to defend or settle the matter at its expense. As conditions of indemnity under this Section 6, the indemnified Party must promptly notify the indemnifying Party in writing of the matter's existence (which notice may not be given by email) and further must cooperate at its expense with the indemnifying Party as requested in defense of the matter.
  7. TERM AND TERMINATION. This Agreement will remain in effect for the period stated in Exhibit A and will automatically renew for consecutive one (1) year terms unless either Party notifies the other Party in writing of its intention not to renew this Agreement not less than thirty (30) days prior to the expiration of the term then in effect. Either Party may terminate this Agreement upon: (1) Failure of the other Party to comply with any material provision of this Agreement, including without limitation all provisions of Section 3, if not remedied within thirty (30) days after notice of default is sent to the defaulting Party (provided that with respect to Section 3 or any unlawful or otherwise prohibited use of KickFire by or on behalf of CUSTOMER, such notice is elective to KICKFIRE and does not need to be given); (2) Filing by the other Party of a voluntary petition under the United States Bankruptcy Act; (3) Filing of an involuntary petition against the other Party under the United States Bankruptcy Act, if not dismissed within sixty (60) days; or (4) Insolvency of or appointment of a receiver for the other Party. Sections 4, 5, 6, 9 and 10 will survive the expiration or termination of this Agreement.
  8. IMPORT AND EXPORT COMPLIANCE. CUSTOMER will not exercise its rights under this Agreement in violation of any United States statute or regulation, including without limitation regulations of the United States Department of Commerce and the United States Office of Export Administration, the International Traffic in Arms Regulations and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.
  9. GOVERNING LAW AND DISPUTES. KickFire API Service is sponsored and managed by KICKFIRE in the state of California, USA. The laws of the state of California govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws. This Agreement is deemed to have been executed and fully performed at San Jose, California. The United Nations Convention on Contracts for the International Sale of Goods (1980) is excluded from application to this Agreement. CUSTOMER agrees that any dispute, claim, controversy, action at law or in equity arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by confidential arbitration in San Jose, California, except that, to the extent that (1) CUSTOMER has in any manner violated or threatened to violate KICKFIRE's Intellectual Property Rights, KICKFIRE may seek injunctive or other appropriate relief in any state or federal court in the state of California or elsewhere and (2) any claims with a monetary value within the jurisdiction of the small claims courts of Santa Clara County will be subject to such jurisdiction and venue. With respect to Sections (1) and (2) above, CUSTOMER irrevocably consents to exclusive jurisdiction and venue in such courts. Any arbitration arising out of or related to this Agreement will be conducted by JAMS by a single arbitrator in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those rules. The arbitrator is to be a retired judge at any available location of JAMS in Santa Clara County with substantial experience in intellectual property matters. The parties may agree on the arbitrator, but if they cannot agree within thirty (30) days of the submission of any claim to JAMS, then a retired judge will be selected by JAMS. The conclusion of the arbitrator will be in accordance with applicable law, in writing and will be binding and final. The arbitrator's award may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
  10. GENERAL PROVISIONS. (a) No agency, partnership, joint venture, or employment is created between KICKFIRE and CUSTOMER by this Agreement. Neither Party has any authority, express or implied, to create any obligation or responsibility on behalf of the other Party. The Parties are for all purposes independent contractors. (b) No waiver, amendment, or modification of any provision of this Agreement will be effective unless in writing and signed by the Party against whom its enforcement is sought. No failure or delay by either Party in exercising any right or remedy under this Agreement, except as provided herein, will operate as a waiver. (c). If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, unlawful, or invalid, such provision will be deemed modified to eliminate the invalid portion and as so modified will be deemed a part of this Agreement. (d) This Agreement is the entire agreement of the Parties for the subject hereof and supersedes all oral or written proposals, purchase orders and discussions relating to this Agreement and all prior courses of dealing or industry customs. Neither Party has made this Agreement in reliance on any representations of fact or opinion not expressly stated herein. (e) Each person signing this Agreement represents that he or she has requisite authority to do so. (f) The Parties will not disclose any terms of this Agreement to any third parties other than their business, financial and legal advisors, or as required by law. (g) All notices, demands or consents given under this Agreement (except for routine operational matters which may be conducted via email between appropriate personnel) will be in writing and will be deemed given when delivered personally, or five days after deposit in the United States mail (certified or registered mail), or three days after being sent by overnight courier, to the receiving Party at its then-current mailing address (Attn: President) or at such other address given by either Party to the other in writing. (h) This Agreement will be binding on the Parties' legal representatives, successors and permitted assigns. CUSTOMER may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of KICKFIRE, except in the case of a merger, acquisition, reorganization or similar transaction of CUSTOMER or upon the sale of substantially all of its assets.