Terms Of Service
FIREBIND TERMS OF SERVICE
FIREBIND INC. (“FIREBIND”) IS WILLING TO PROVIDE CERTAIN SERVICES AND/OR SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO ONE OR MORE ONLINE REGISTRATION FORMS, QUOTATIONS, ORDER FORMS, SALES ORDERS, STATEMENTS OF WORK, OR SIMILAR DOCUMENTS (EACH AN “ORDER FORM”) WITH FIREBIND THAT REFERENCES THESE TERMS OF SERVICE, ONLY ON THE CONDITION THAT YOU ACCEPT THESE TERMS OF SERVICE. READ THESE TERMS OF SERVICE CAREFULLY BEFORE PURCHASING ANY SERVICES OR SOFTWARE FROM FIREBIND. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND FIREBIND. BY EITHER (A) CLICKING THE “ACCEPT” BUTTON TO WHICH THESE TERMS OF SERVICE ARE ATTACHED (OR ANY SIMILAR BUTTON OR LINK AS MAY BE DESIGNATED BY FIREBIND TO SHOW YOUR ACCEPTANCE OF THESE TERMS OF SERVICE) OR BY (B) ENTERING INTO AN ORDER FORM WITH FIREBIND THAT REFERENCES THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. THESE TERMS OF SERVICE AND ALL ORDER FORMS ARE COLLECTIVELY REFERRED TO HEREIN AS THE “AGREEMENT”.
IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A “CORPORATE ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOLWEDGE THAT THE TERM “YOU” OR “CUSTOMER” REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.
- Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
- Authorized Users mean an active full or part-time employee or contractor of Customer or any customer or client of Customer who is authorized by Customer to use the Subscription Service.
- Confidential Information has the meaning ascribed to it in Section 4.1.
- Content means text, images, documents, materials, and all other forms of data or communication.
- Customer means the person or entity that enters into an Order Form with Firebind that expressly references these Terms of Service.
- Customer Content means all Content made available by Customer or its Authorized Users to Firebind for use in connection with the Services or generated by Customer via use of the Services and includes, without limitation, all data specific to Customer’s customers and clients.
- Documentation means the documentation for the Subscription Service generally supplied by Firebind to assist its customers in the use of the Subscription Service or Software.
- Feedback means any Customer provided feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Subscription Service or Software;
- Firebind Content means all Content made available by Firebind to Customer in connection with Customer’s use of the Subscription Service.
- Professional Services means those installation, set-up, launch, integration, configuration, consulting, and/or training services to be provided by Firebind, if and as specified on an Order Form.
- Services means the Subscription Service and any Professional Services provided by Firebind pursuant to this Agreement.
- Software means Firebind’s proprietary software agents utilized by Customer or Customer’s customers or clients and all updates, enhancements, bug fixes and new releases thereto that Firebind elects in its discretion to make available to Customer.
- Subscription Service means Firebind’s proprietary subscription-based testing and monitoring solution described on the applicable Order Form and all updates, enhancements, and new releases thereto that Firebind makes available to Customer and any related technical support described herein.
- Work Product means any work product, deliverables, programs, interfaces, modifications, configurations, reports, analyses or documentation developed by Firebind on behalf of Customer and delivered to Customer in the performance of any Professional Services.
- Services. Firebind shall provide Customer with the specific Services specified on an Order Form. Any conflict between the terms and conditions set forth in this Agreement and any Order Form shall be resolved in favor of this Agreement unless such Order Form expressly references the conflicting provision in this Agreement that it is intended to control and states that it is to control. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Firebind regarding future functionality or features.
- License Grant – Subscription Service. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Firebind hereby grants to Customer, solely during the term of the applicable Order Form, a non-exclusive, non-transferable (except as set forth in Section 10.2) license to access and use the Subscription Service solely for Customer’s business purposes. This license is restricted to use by Customer and its Authorized Users and does not include the right to use the Subscription Service on behalf of any third party other than Customer’s customers or client. Customer and/or its Authorized Users are responsible for procuring and maintaining the network connections that connect the Customer and such Authorized Users to the Subscription Service and for paying all of its third party Internet usage charges. Customer agrees: (a) that only Authorized Users are permitted to use the Subscription Service; (b) that it is responsible for Authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service and the Documentation from unauthorized use.
- License Grant – Software. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Firebind hereby grants to Customer, during the applicable Order Form only, a non-exclusive, non-transferable (except as set forth in Section 10.2) license to allow Customer and its customers and clients the right to download and use the Software (in object code form only) for purposes of testing and monitoring network connections being monitored by the Subscription Service.
- Licensed Volume. The Customer acknowledges that access and use of the Subscription Service is licensed to the Customer for use up to the number of agents or other metric purchased by the Customer and set forth on the applicable Order Form. In the event that Customer desires to use the Subscription Service with any additional agents then Customer shall execute an amendment to its Order Form or enter into a new Order Form with Firebind and shall pay Firebind any applicable additional fees set forth on the Order Form.
- Trials. If Customer receives free access or a trial or evaluation subscription to the Subscription Service (a “Trial Subscription”), then Customer may use the Subscription Service in accordance with the terms and conditions of this Agreement for the period designated in the Order Form or otherwise by Firebind (and if not designated, then for fifteen (15) days) (the “Trial Period”). Trial Subscriptions are permitted solely for your use of the Subscription Service to determine whether to purchase a full subscription to the Subscription Service. Customer may not use a Trial Subscription for any other purposes, including for competitive analysis, without Firebind’s express written consent in each instance. At the end of the Trial Period, the Trial Subscription will expire, and Customer will have the option to purchase a full subscription to the Subscription Service. If Customer purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Subscription Service. Firebind has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, FIREBIND WILL HAVE NO WARRANTY OR INDEMNITY, OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
- Technical Support. As part of the Subscription Service, Firebind shall provide technical support services to Customer as follows:
Contacting Firebind Support Services
|Support Hotline||US: (857) 209-4065|
Standard Business Hours
Support Representatives address cases open in the Firebind Customer Center during standard business hours* of:
9am – 5pm
9am – 5pm
9am – 5pm
9am – 5pm
9am – 5pm
*Excluding US Holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after, and Christmas Day
Customer may purchase extended hours support if indicated on the Order Form.
Firebind will use commercially reasonable efforts to respond to all Customer support requests within one (1) business day.
3.1 Fees. Customer agrees to pay Firebind for Services provided and expenses incurred on the basis and at the rates specified in each Order Form. Except as otherwise expressly set forth in this Agreement, all fees paid by Customer to Firebind are non-refundable. Payments will be billed to Customer in U.S. dollars, and Customer’s account will be debited when Customer subscribes and provides payment information. Unless otherwise agreed by Firebind, Customer must pay with one of the following: (i) a valid credit card acceptable to Firebind; (ii) a valid debit card acceptable to Firebind; (iii) sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or (iv) by another payment option Firebind agrees to in writing. If Customer’s payment and registration information is not accurate, current, and complete and Customer does not notify Firebind promptly when such information changes, Firebind may suspend or terminate Customer’s account and refuse any use of the Services. Customer agrees to pay a late charge of one percent (1%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due.
3.2 Disputed Charges. If Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, Customer shall pay the amounts due under this Agreement less the disputed amount, and the Parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Customer delivers a written statement to Firebind on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by Customer and (ii) all other amounts due from Customer that are not in dispute have been paid as and when required under this Agreement.
3.3 Taxes. Fees are exclusive of taxes. Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Firebind and any taxes or obligations imposed upon Firebind under federal, state and local wage laws.
- Confidential Information. Each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature and includes any special pricing offered by Firebind to Customer. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.
- Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
- Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
- LIMITED WARRANTY
- Subscription Service / Software Warranty. Firebind warrants that during the term of any Order Form for the Subscription Service, the Subscription Service and Software will conform, in all material respects, with its Documentation. Firebind does not warrant that it will be able to correct all reported defects or that use of the Subscription Service or Software will be uninterrupted or error free. Firebind makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Firebind will, at no additional cost to Customer, provide remedial services necessary to enable the Subscription Service or Software to conform to the warranty. Customer will provide Firebind with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranty. Such warranty shall only apply if the Subscription Service and Software has been utilized by Customer in accordance with the Order Form and this Agreement.
- Professional Services Warranty. Firebind warrants that any Professional Services provided hereunder shall be provided in a competent manner in accordance with any specifications set forth in the Order Form in all material respects. Firebind further warrants that any Work Product provided pursuant to any Professional Services engagement shall comply, in all material respects, with the specifications set forth in the applicable Order Form. If the Services are not performed as warranted or the Work Product does not so comply, then, upon Customer’s written request, Firebind shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to Customer. Such warranties and other obligations shall only survive for thirty (30) days following the completion of the Professional Services or the delivery of each applicable portion of the Work Product, as the case may be. Such re-performance shall be Customer’s exclusive remedy and Firebind’s sole liability for any such non-performance. If, however, after repeated efforts, Firebind is unable to remedy such defect in any Work Product, then Customer’s sole remedy and Firebind’s entire liability shall be to refund to Customer any amounts previously paid by Customer solely for the portion of the Professional Services or Work Product that was deficient.
- No Other Warranty. FIREBIND DOES NOT REPRESENT THAT THE SERVICES OR SOFTWARE WILL BE ERROR-FREE OR THAT THE SERVICES OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED OR THAT THE SOFTWARE OR THE SUBSCRIPTION SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY FIREBIND. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. FIREBIND MAKES NO WARRANTY THAT ALL RISKS OR THREATS WILL BE DETECTED BY USE OF THE SOFTWARE OR SUBSCRIPTION SERVICE OR THAT FALSE POSITIVES WILL NOT BE FOUND.
- LIMITATION OF LIABILITY.
- Consequential Damage Waiver. Neither Party will be liable to the other or any third party for loss of profits, or special, indirect, incidental, consequential or exemplary damages, including lost profits and costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.
- Limitation of Liability. The total cumulative liability of Firebind to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the Services fees paid by Customer to Firebind under the Order Form for the Services which form the subject of the claim during the three (3) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the Parties. The pricing set forth in each Order Form reflects this allocation of risk and the limitation of liability specified herein.
7.1 Term. This Agreement will commence when accepted by Customer and will continue in effect until otherwise terminated in accordance with Section 7.2 below. The term of each Order Form for the Subscription Service shall be set forth on the Order Form. Firebind reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such Order Form upon providing Customer written notice thereof (which notice may be provided by e-mail) at least 30 days prior to the then current renewal date of the Order Form.
7.2 Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form (i) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice thereof from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Forms then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.
7.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, Firebind shall no longer provide the applicable Services to Customer and Customer shall cease and cause its Authorized Users to cease using the Services and Software. Customer shall pay Firebind for all fees that had accrued prior to the termination date. If this Agreement is terminated by Customer due to Firebind’s uncured breach then Customer shall be entitled to a pro rata refund of any prepaid, unused fees paid hereunder. Except as set forth in the immediately preceding sentence, no refund shall be provided to Customer (even for any prepaid, unused fees). Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
- OWNERSHIP; USE OF CONTENT; OBLIGATIONS
8.2 Subscription Service, Software and Firebind Content. Customer acknowledges and agrees that as between Firebind and Customer, all right, title and interest in and to the Subscription Service, the Software, the Documentation and all enhancements, modifications and derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain Firebind’s or its licensors’, and Firebind in no way conveys any right or interest in the Documentation, Software or Subscription Service other than a limited license to use it in accordance herewith. Firebind also retains ownership of all right, title and interest in and to all Firebind Content. During the term of this Agreement, Firebind grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, display, transmit, and distribute the Firebind Content solely in connection with Customer’s permitted use of the Subscription Service. Notwithstanding any terms to the contrary in this Agreement, in the event Customer provides Firebind with Feedback, Customer hereby grants to Firebind an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed.
8.3 Work Product/Professional Services. Customer will have a non-exclusive, non-transferable license to use any Work Product developed by Firebind in the performance of the Professional Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder, solely for Customer’s use in connection with the Subscription Service (and not separate therefrom). Firebind retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all Work Product compiled or developed by Firebind in the performance of this Agreement.
8.4 Customer Obligations. Customer is responsible for all activities conducted under its Authorized User logins and for its Authorized Users’ compliance with this Agreement. Unauthorized use, resale or commercial exploitation of the Subscription Service or Software in any way is expressly prohibited. Customer must ensure that any person or entity to whom it provides access to the Software complies with the provisions of this Agreement. Without Firebind’s express prior written consent in each instance, Customer shall not (and shall ensure that its Authorized Users, customers and clients do not): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or Software or access the Subscription Service or Software in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service or Software. Except as expressly permitted in this Agreement, neither Customer or any of its Authorized Users, customers or clients shall copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Subscription Service or any Software to any third-party. Customer shall be liable for any breach of this Agreement by any of its Authorized Users, customers or clients. In addition to Firebind’s other remedies hereunder, Firebind reserves the right upon notice to Customer to terminate any person’s right to access the Subscription Service or the Software if such person has violated any of the restrictions contained in this Agreement. Customer is solely responsible for all Customer Content. Firebind does not guarantee the accuracy, integrity or quality of such Customer Content. Neither Customer nor its Authorized Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Customer Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Content that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation.
9.1 Firebind Indemnification. Subject to Sections 6 above and 9.3 below, Firebind will indemnify, defend and hold Customer and its Affiliates harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer or any of its Affiliates alleging that the use of the Services or Software as permitted hereunder infringes any United States copyright or trademark, or constitutes a misappropriation of a trade secret of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services or Software in violation of this Agreement or applicable law, (b) use of the Services or Software after Firebind notifies Customer to discontinue use because of an infringement claim, (c) any claim relating to any third party products or services or Customer Content, (d) modifications to the Services or Software made other than by Firebind (where the claim would not have arisen but for such modification), (e) the combination, operation, or use of the Services or Software with software or equipment which was not provided by Firebind, to the extent that Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by Firebind with Customer’s custom requirements or specifications if and to the extent such compliance with Customer’s custom requirements or specifications resulted in the infringement. If the Services or Software are held to infringe, Firebind will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect Customer against such claim without cost to Customer; (b) to replace the Services or Software with non-infringing Services or Software; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Order Form and refund to the Customer any prepaid unused fees paid to Firebind for the infringing Services. The rights and remedies granted Customer under this Section 9.1 state Firebind’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.
9.2 Customer Indemnification. Subject to Sections 6 above and 9.3 below, Customer shall indemnify, defend, and hold Firebind and its Affiliates harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against Firebind or any of its Affiliates that arises out of or results from a claim (i) alleging that the Customer Content, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party, or (ii) arising out of Customer’s use of the Services or Software (except where Firebind has expressly agreed to indemnify Customer above) or (iii) breach of Sections 8.4 above or Customer’s violation of any applicable law.
9.3 Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).
- GENERAL PROVISIONS
- Entire Agreement and Controlling Documents. This Agreement, including all Order Forms, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by Firebind. Firebind may modify this Agreement at any time by posting a new Agreement on this site. Firebind will give Customer thirty (30) days prior notice of any changes before they take effect. Customer’s continued access or use of the Services or Software after the modifications become effective is deemed Customer’s conclusive acceptance of the modified Agreement. If Customer does not agree to the modified Agreement then Customer may, as its sole remedy, terminate this Agreement upon notice to Firebind prior to the date that the modifications become effective and receive a refund of any prepaid, unused fees (if any) paid hereunder.
- Assignment. This Agreement shall be binding upon and for the benefit of Firebind, Customer and their permitted successors and assigns. Either Party may assign this Agreement and all Order Forms as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. Firebind may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Firebind shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law provisions. Any legal action or proceeding with respect to this Agreement shall be brought in the state or federal courts in Boston, Massachusetts. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts.
- Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
- Relationship of the Parties. Firebind and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
- Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.
- Modifications to Subscription Service. Firebind may make modifications to the Subscription Service or Software or particular components of the Subscription Service or Software from time to time provided that such modifications do not materially degrade any functionality or features of the Subscription Service or Software.
- Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party set forth on the applicable Order Form. Either Party may change its address by giving written notice of such change to the other Party.
- No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
- Publicity. Customer hereby grant to Firebind the right to use its name, trademarks, and logos solely for purposes of identifying and promoting Customer as a client of Firebind during the term of this Agreement and thereafter. Customer may revoke this right upon written notice or email to Firebind at the following email address: firstname.lastname@example.org]
- Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.