FIREPOWER MARKETING, INC. (“FIREPOWER”) IS THE EXCLUSIVE OWNER OF A PROPRIETARY PURCHASE INCENTIVE REWARDS PROGRAM (THE “PROGRAM”) AND PROVIDES THE PROGRAM ALONG WITH POST CARDS, SIGNAGE, AWARD LETTERS, PERSONALIZED MAGNETICALLY ENCODED LOYALTY CARDS, AND WEBSITE (COLLECTIVELY, THE “COPYRIGHTED WORKS”), AND ACCESS TO A DATABASE MANAGEMENT SOFTWARE PROGRAM (THE “SOFTWARE”) TO YOU SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”). PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. AS USED IN THIS AGREEMENT, “YOU” AND “YOUR” REFER TO THE PERSON OR ENTITY USING THE PROGRAM. YOU AND FIREPOWER ARE COLLECTIVELY REFERRED TO AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.”
BY CLICKING THE “AGREE” BUTTON, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLICK “DISAGREE.”
1. License to You.
Firepower hereby grants to You a limited, revocable, non-transferable, and nonexclusive right to use the Program, Copyrighted Works, and ROYALTY REWARDS & Design service mark (the “ROYALTY REWARDS Mark”) in the United States and Canada in connection with the implementation, advertisement, and promotion of the Program (collectively, the “Customer License”) for the Term (as herein defined) of this Agreement. You acknowledge and agree that all use of the ROYALTY REWARDS Mark will inure to Firepower’s benefit. You shall have no right to grant a sub-license to use the Program or the ROYALTY REWARDS Mark, nor the right to create derivative works of the Copyrighted Works. Firepower reserves any and all rights not expressly granted to You in this Agreement. For avoidance of doubt, You are not allowed to resell, distribute, license, or otherwise commercialize the Program.
2. License to Firepower.
You hereby grant to Firepower a revocable, royalty-free, and nonexclusive right to use any trademarks or service marks associated with Your business (collectively, the “Customer Marks”) and any works of authorship delivered by You to Firepower (“Customer Works”) to create signage, post cards, personalized magnetically coded loyalty cards, and other promotional materials for or in connection with the Program (the “Firepower License”) for the Term of this Agreement. Firepower acknowledges and agrees that all use of the Customer Marks will inure to Your benefit. Firepower has the right to create a derivative work of the Customer Works. You represent that you have the right to grant Firepower the Firepower License, and that Your rights in the Customer Marks and Customer Works do not infringement the intellectual property rights of a third party.
3. Authorized Access.
For the Term of this Agreement, You may access and use the Software.
4. Payments and Pricing.
The price for the License and access to the Software depend on whether You are: Affiliate Pricing or Non-Affiliate Pricing. In consideration for the License and access to the Software, You agree to pay Firepower according to one of the Schedules attached to this Agreement. Firepower will submit to You one summary invoice each month detailing the charges incurred for that month. All invoices are due upon receipt, and You agree to pay Firepower’s invoices according to their terms. There are no direct or indirect fees for the License. You acknowledge and agree that Firepower has the right to change the prices and payment terms set forth on an invoice at any time and for any reason without providing You with notice of the change, and You hereby agree to be bound by those changes. Firepower may assess a service charge at the maximum rate permitted by law for past due accounts.
This Agreement will commence on the Effective Date and continue until terminated (the “Term”). For purposes of this Agreement, the “Effective Date” means the day You click “accept” to the terms and conditions of this Agreement.
Firepower may terminate this Agreement upon any of the following: (a) You fail to pay Firepower any amounts owed under this Agreement or any other agreement between the Parties; (b) You fail to meet Firepower’s standards for providing the Program; (c) You violate any applicable laws, rules, regulations, codes, or ordinances; (d) You engage in any unethical or immoral conduct; (e) the institution of bankruptcy proceedings, receivership, insolvency, reorganization, or other similar proceedings by or against You; (f) the liquidation, dissolution, or winding up of You; or (g) You violate any provision of this Agreement or any other agreement between the Parties.
7. Effect of Termination.
Upon termination of this Agreement for any reason, the Customer License, Firepower License, and Your access to the Software will terminate and You agree to immediately cease using: (a) the Program and the methods and procedures associated therewith; (b) the ROYALTY REWARDS Mark; and (c) the Copyrighted Works. Upon termination, Firepower agrees to cease using the Customer Marks. Within thirty (30) days following the termination of this Agreement for any reason, You shall surrender the Copyrighted Works, all documents and other materials containing Confidential Information, and all signage and point of sale displays containing the ROYALTY REWARDS Mark to Firepower. Such returns shall be properly shipped, freight prepaid, and adequately insured by You to the address as Firepower will specify in writing. Upon termination, Firepower will return Your customer’s contact information.
8. Confidential Information.
You acknowledge and agree that the Program and certain Confidential Information relating to Firepower’s ongoing business is of great value to Firepower and is not readily available to outsiders, including competitors or members of the public. The term “Confidential Information” shall mean the Copyrighted Works and all methods, processes, diagrams, practices and policies, customer and lists and information including, but not limited to, account information, methods of operation, ideas, know-how, techniques, trade secrets, documentation, presentations, concepts, and other confidential information whether disclosed orally or in writing or machine readable form relating to the Program and related information and materials provided by the Firepower to You in connection with the Program.
9. Protection of Confidential Information.
You will, at all times, hold the Program and Firepower’s Confidential Information in confidence and implement adequate safeguards to ensure that unauthorized persons do not have access to the Program and the Confidential Information while they are in Your possession, custody, or control. You will not disclose the Program or any Confidential Information at any time to third parties or use such information for the benefit of third parties without Firepower’s express written consent.
10. Use of Confidential Information.
Unless expressly authorized in writing by Firepower and except as expressly provided in this Agreement, You will not at any time copy, reproduce, distribute, license, or display the Program or any Confidential Information. You agree not to develop services based in whole or in part on the Program or Confidential Information.
11. Ownership of Intellectual Property.
You acknowledge and agree that Firepower retains all rights, title, and interest in and to the Program, Confidential Information excluding Your customer’s contact information, Copyrighted Works, and ROYALTY REWARDS Mark. To the extent You create any improvements, modifications, or changes pertaining to the Program or Confidential Information, You hereby assign all rights, title, and interest in and to such improvements free and clear of any liens, claims, or encumbrances to Firepower.
12. Information Provided to Firepower.
You acknowledge and agree that for the Program to operate to its full capacity You will provide certain information to Firepower. This information may include, but is not limited to, information about Your customers such as name, mailing address, email address, telephone number, cell phone number, birth date, anniversary date and any other information required for Firepower to enroll the customer in the Program (collectively, the “Provided Information”). Firepower agrees to hold the Provided Information as confidential and will not sell or otherwise disclose the Provided Information to third parties, provided, however that Firepower reserves the right to store the Provided Information in a database and cross reference and merge the Provided Information with information provided by other Program users.
13. Representations and Narratives re Provided Information.
You acknowledge and agree that the Provided Information was collected or obtained in accordance with all laws applicable in Your jurisdiction and that Firepower is relying on these representations to ensure the proper operation of the Program. You further represent to Firepower that Firepower’s use of the Provided Information for the purpose of operating the Program will not violate any applicable law in Your jurisdiction. You further agree that Firepower may provide You with forms, webpage, URLs or other means of registering customers in the Program from time to time and that You will exclusively use these forms to register customers and comply with any and all instructions for their use.
14. Quality Control.
You acknowledge and agree that Firepower may from time to time provide You with reasonable standards to ensure the continued quality of the Program offered under the ROYALTY REWARDS Mark. You agree to cooperate with Firepower to comply with the quality standards furnished by Firepower from time to time.
15. Customer Trademark Use Guidelines.
You acknowledge and agree that (a) all use of the ROYALTY REWARDS Mark by You shall be in full compliance with any guidelines that may be furnished from time to time by Firepower; (b) all use and display of the ROYALTY REWARDS Mark shall include the ® registration symbol; (c) You agree not to alter, modify, or combine the ROYALTY REWARDS Mark with any other trademark, service mark, trade name, domain name, Your name, slogan, logo, or e-mail address; (d) You agree not to use the ROYALTY REWARDS Mark in any manner that is likely to cause confusion, mistake, deception, dilution, is obscene, or would weaken or result in tarnishment of the ROYALTY REWARDS Mark; and (e) You agree to comply with all additional requirements provided by Firepower with respect to the style, appearance, and manner of use of the ROYALTY REWARDS Mark.
16. Customer Trademark Use Restrictions.
You agree not to use, register, or seek to register any trademark, service mark, trade name, domain name, or e-mail address containing, in whole or in part, the ROYALTY REWARDS Mark, or any designation confusingly similar thereto in the United States, Canada or any other country.
17. Infringement Prosecution.
You agree to immediately notify Firepower in writing of any infringement, threatened infringement, or misuse of the ROYALTY REWARDS Mark, Copyrighted Works, Program, or Confidential Information of which You become aware. In any such case, Firepower has complete discretion whether to institute proceedings for infringement of the ROYALTY REWARDS Mark, Copyrighted Works, Program, or Confidential Information and complete discretion and control over such proceedings. You shall cooperate with Firepower to enforce and protect the ROYALTY REWARDS Mark, Copyrighted Works, Program, or Confidential Information in any infringement proceeding including, but not limited to, furnishing documentary and oral evidence as may be requested by Firepower.
18. Prohibited Use of the Software.
By accessing and using the Software, You agree not to do any of the following: (a) intentionally or unintentionally violate any local, state, or federal law; (b) upload or transmit any software or files that contain software viruses or other harmful computer code; (c) interfere with the operation of the Web servers hosting the Software or other computers or Internet or network connections; or (d) interfere, disrupt, or attempt to gain unauthorized access to the Software or any other related computer network.
19. Computer Equipment.
You shall be solely responsible for providing, maintaining and ensuring all hardware, software, including, but not limited to, middle-ware, electrical and other physical requirements for Your use of the Software, including, without limitation, telecommunications, Internet access connections, Web browsers or other equipment, programs , and services required to access and use the Software.
You acknowledge and agree that at times some or all of the Software may be unavailable for any reason whatsoever, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs; or (c) causes that are beyond the control of Firepower or that are not reasonably foreseeable. Further, regular scheduled maintenance may be completed and the Software may be unavailable weekly on Sundays between 2:00 AM to 5:00 AM Eastern.
You agree to indemnify and hold Firepower and its shareholders, agents, officers, directors, employees, successors, assigns, parents, subsidiaries, and affiliates harmless from any and all liabilities, obligations, loss, damage, injury, penalty, action, judgment, suit, claim, cost, expense or disbursement of any kind (collectively, the “Indemnified Loss”) that may be imposed on, incurred by or served against them by any person or entity arising out of or related to Your advertising, promotion, marketing, or use of the Program, Copyrighted Works, Confidential Information, Software, and ROYALTY REWARDS Mark, or any alleged act arising out of or in connection with this Agreement. Such indemnification shall include, without limitation, indemnification for attorneys’ fees and other costs that may be incurred by Firepower with respect to any Indemnified Loss, including such fees and costs for investigation and consultation regarding any threatened claim, whether or not any legal action is ultimately commenced against Firepower. You agree to reimburse Firepower for its reasonable attorneys’ fees incurred with respect to the protection and enforcement by You of its rights pursuant to this Agreement.
22. Limitation of Liability.
IN NO EVENT SHALL FIREPOWER BE LIABLE TO YOU, OR ANY OTHER PERSON, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE EVEN IF FIREPOWER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FIREPOWER’S LIABILITY FOR DAMAGES HEREUNDER, IF ANY, EXCEED THE AMOUNT OF THE INVOICE PRIOR TO THE DATE OF THE CLAIM, OR, IN THE CASE OF PRINTING, THE COST OF THE PRINTING.
23. Warranty Disclaimer.
YOUR USE OF THE PROGRAM, COPYRIGHTED WORKS, CONFIDENTIAL INFORMATION, AND ROYALTY REWARDS MARK PURSUANT TO THIS AGREEMENT DOES NOT CONSTITUTE FIREPOWER’S ENDORSEMENT OF OR ANY JOINDER IN ANY GUARANTEE OR WARRANTIES MADE BY YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FIREPOWER, OR ITS SHAREHOLDERS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, PARENTS, SUBSIDIARIES, OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND, IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, INJURY, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, OR LOSS OF PROFITS ARISING OUT OF, OR RELATED TO, IN ANY MANNER, THIS AGREEMENT, THE USE OF THE PROGRAM, SOFTWARE, OR CONFIDENTIAL INFORMATION, INFRINGEMENT, OR THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER REGARDLESS OF THE FORESEEABILITY THEREOF. IN NO EVENT SHALL FIREPOWER’S TOTAL LIABILITY FOR ALL DAMAGES EXCEED THE AMOUNT OF MONIES PAID UNDER THIS AGREEMENT FOR THE YEAR IMMEDIATELY PRECEDING THE DATE OF ANY CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
24. Customer Express Waiver.
YOU ACKNOWLEDGE AND AGREE THAT FIREPOWER DOES NOT CONTROL OR HAVE ACCESS TO THE WEB SERVERS WHERE YOUR CUSTOMER DATA THAT IS COLLECTED THROUGH THE PROGRAM IS STORED INCLUDING, BUT NOT LIMITED TO, THE SECURITY MEASURES EMPLOYED TO PROTECT SUCH DATA. FIREPOWER MAKES NO REPRESENTATIONS ABOUT THE SECURITY OF YOUR CUSTOMER DATA. YOU AGREE TO ASSUME ALL RISK IN AND SOLE RESPONSIBILITY FOR USING THE SOFTWARE INCLUDING, WITHOUT LIMITATION, ALL RISK OF INJURY DUE TO A DATA SECURITY BREACH.
You hereby waive, release, and forever discharge Firepower, its current and former affiliates, subsidiaries, related companies, predecessors, directors, officers, members, attorneys, or agents, from any and all losses, damages, costs, actions, suits, complaints, or injuries to You, whether known or unknown, liquidated or unliquidated, absolute or contingent, that are directly or indirectly related to, caused by, or arise out of a data security breach. In addition, You agree to at all times hold harmless, indemnify, defend, and forever release and discharge Firepower from and against any and all claims, liabilities, actions, or causes of action threatened or asserted against Firepower or that could be asserted against Firepower arising out of or resulting from a data security breach, or any commenced or threatened action by a third party against Firepower arising out of or relating to a data security breach.
26. Equitable Relief.
You acknowledge and agree that a breach of any of the obligations set forth in this Agreement will cause irreparable injury to Firepower and shall entitle Firepower to equitable relief or remedy. The pursuit or securing of any such equitable relief shall not prohibit or limit Firepower from seeking or obtaining any other remedy provided under this Agreement or by law. If any or all of the above covenants or agreements are held to be unenforceable because of the scope or duration of such covenant or agreement or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the scope, duration and area of such covenant or agreement to the extent that allows the maximum scope, duration and area permitted by applicable law. The covenants, agreements, and remedies provided herein are in addition to, and are not to be construed as a replacement for or limited by, the rights and remedies otherwise available to Firepower including, but not limited to, those rights and remedies contained in the Uniform Trade Secrets Act, or its state counterparts.
27. Independent Relationship.
The Parties intend this strategic relationship to be one of distributor and retailer, and licensor and licensee. The Parties expressly disclaim any intention to create a relationship of franchisor-franchisee, partners, joint-ventures or agent-principal. Accordingly, neither Party may hold itself out as an agent of the other Party nor can either Party legally bind the other Party.
You may not assign this Agreement without Firepower’s express written consent.
This Agreement is binding upon and inures to the benefit of the Parties and their respective officers, directors, shareholders, subsidiaries, permitted assigns, permitted transferees, and anyone else acting on their behalf.
30. Attorneys’ Fees.
The Parties agree that the prevailing Party in any litigation arising out of or relating to this Agreement will be entitled to recover all reasonable attorneys’ fees and other expenses in addition to statutory “costs” of litigation.
31. Governing Law and Jurisdiction.
To the extent permissible by the laws of Your state, province, or country, this Agreement shall be governed by and construed in accordance with the internal laws of the State of Washington, excluding Chapter 19.100 RCW and the rules promulgated thereunder, as amended or replaced from time to time. To the extent permissible by the laws of Your state, province, or country the Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in the State of Washington with respect to any dispute arising out of or related to this Agreement.
If a court of competent jurisdiction rules that any part of this Agreement is not enforceable, that part may be modified by the court to make it enforceable or it may be severed and the other parts of the Agreement shall remain enforceable.
Not enforcing a breach of any part of this Agreement shall not prevent the non-breaching Party from enforcing it as to any other breach of this Agreement that it discovers.
You may not cancel, modify, or otherwise change this Agreement without Firepower’s express written consent. Firepower may cancel, modify, or otherwise change this Agreement without Your consent.
35. Entire Agreement.
This Agreement and the Royalty Rewards Fast Start incorporates the entire understanding between the Parties as to its subject matter and all prior discussions, agreements and understandings are hereby superseded and merged into this Agreement.
Notwithstanding the termination of this Agreement, the Parties shall be required to carry out any provision hereof that contemplates performance subsequent to such termination, and such termination shall not affect any liability or other obligation that have accrued prior to such termination, including, but not limited to, any liability for loss or damage on account of a prior breach. Without limiting the generality of the foregoing, the Parties specifically agree that the rights and duties contemplated in Paragraphs 3, 5, 8-12, and 20-35 shall survive termination of this Agreement for any reason.
37. No Coercion.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY AND UNDERSTAND ITS TERMS, INCLUDING THOSE BY WHICH YOU HAVE RELEASED AND DISCHARGED FIREPOWER FOREVER FROM ALL LIABILITIES RELATING TO ANY DAMAGES OR INJURIES TO YOU ARISING OUT OF A DATA SECURITY BREACH.