Last Updated: July 12 2017
Firecracker, Inc. (“Firecracker”) provides a mobile and web learning platform for students that helps them prepare for medical school examinations (as more specifically defined below, the “Service”).Firecracker maintains an Institution Program under which an educational institution (an “Institution”) may purchase subscriptions for its students to use the Service, and may also purchase subscriptions to certain Firecracker online applications that enable the Institution to, among other things, monitor its students’ performance under the Service for their educational purposes.Firecracker and Institution are also sometimes individually referred to as a “Party” or together as the “Parties.” These terms and conditions govern the Institution’spurchase of such subscriptions(the “Agreement”).
1. Definitions.As used in this Agreement:
“Affiliate” means, with respect to either Party, any person or entity that directly or indirectly controls, is controlled by or is under common control with such Party, where “control” means (a) ownership of more than 50% of the equity of such Party or entity or (b) the power to direct or cause the direction of the management and policies of such Party or entity.
“Content” means any content made available by Firecracker to Students or Institution through the Service or the Institution Applications, as applicable, including text, audio, pictures, videos or other content.“Content” excludes Institution Data and Submitted Content.
“Documentation” means Firecracker’s online user guides, documentation, and help and training materials, as updated by Firecracker from time to time, provided by Firecracker for use in connection with the Service and/or the Institution Applications, as applicable.
“Education Record” means any education record as defined in the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its implementing regulations, 34 C.F.R. 99.3 (“FERPA”).
“Institution Application” means each Firecracker mobile and web application, provided via Firecracker’s technology platform, that Firecracker makes available to Institution for use in connection with the Service and a subscription to which is purchased by Institution pursuant to an Order.
“Institution Data” means all electronic data, information and other content that is submitted by or for Institution to the Institution Applications or to the Service.“Institution Data” excludes Education Records and Service Data.
“Order” means an order form, that references this Agreement and is prepared by Firecracker and signed by Institution, for the purchase by Institution of Service Subscriptions and/or subscriptions to one or more Institution Applications.
“Service” means Firecracker’s generally available mobile and web learning services, provided via Firecracker’s technology platform, that Firecracker provides to Students to help them prepare for the USMLE, Shelf Exams and medical school classes.“Service” includes the Firecracker website through which such services are made available by Firecracker.“Service” excludes the Institution Applications.
“Service Data” means (i) aggregated or de-identified records and information that do not identify any Registered Student and from which no Registered Student can be reasonably identified, and (ii) information relating to a Registered Student who has consented, to the extent legally required and in accordance with applicable law, to Firecracker’s use and retention thereof.
“Service Subscription” means a subscription to the Service that allows a Student to access and use the Service for the purposes of preparing for the USMLE, Shelf Exams or medical school classes in accordance with the Terms of Service.
“Shelf Exam” means subject-specific examinations tested by the national board of medical examiners and generally referred to as shelf exams.
“Student” means a person who is attending Institution as a student, in their capacity as such.An individual remains a “Student” only during the time which such individual meets the foregoing definition.
“Student Subscription Maximum” means the total number of Service Subscriptions purchased by Institution hereunder, as the same may be more particularly defined in an Order.
“Student Email Address” means the unique email address assigned by Institution to a Student, as specified by Institution to Firecracker in writing from time to time during the Term in accordance with this Agreement.
“Submitted Content” means any content submitted by or on behalf of Institution via an Institution Application for use by Students via the Service, including as part of Service Content.
“Terms of Service” means the Firecracker terms of service for the Service, as may be updated by Firecracker from time to time as posted at firecracker.me/terms or such other URL as Firecracker may determine from time to time.
“Third Party” means a person or entity other than a Party or an Affiliate of a Party.
“USMLE” means the United States Medical Licensing Examination.
2. Provision and Use.
2.1 Provision and Use of Service by Registered Students.Subject to the terms and conditions of this Agreement (including the applicable Orders), during the applicable Service Subscription term, Firecracker will make the Service available to applicable Registered Students for use solely for the purposes of preparing for the USMLE, Shelf Exam or medical school classes; provided, that the number of Service Subscriptions per year shall not exceed the Student Subscription Maximum for that year as specified in the applicable Order.For clarity, Institution may not purchase a Service Subscription for any Third Party other than a Student.Service accounts are for designated Students only and cannot be transferred or re-assigned to another Student or shared or used by more than one Student.
2.2 Provision and Use of Institution Applications; Institution Service Accounts.Subject to the terms and conditions of this Agreement (including the applicable Orders), Firecracker will make each Institution Application available to Institution during the applicable Institution Application subscription term, for use solely by Institution and its individual administrators and faculty members who are authorized by Institution to use the Institution Applications for Institution’s educational purposes and to whom Institution has supplied unique user identifications and passwords (“Institution Permitted Users”).Institution Application accounts are for designated Institution Permitted Users only and cannot be transferred, or shared or used by more than one Institution Permitted User.
Subject to the terms and conditions of this Agreement, during the term of each Institution Application subscription, Firecracker will also make the Service available for use by Institution Permitted Users in connection with each Institution Permitted User's Institution Application account (and under the same username as such Institution Permitted User's Institution Application account), solely for the administrative purposes of learning about and understanding the functionality of the Service in furtherance of Institution's Student educational purposes (i.e., not for direct use as a "Student"), in accordance with this Agreement, the Documentation, and applicable law.Institution Service accounts are for the designated Institution Permitted Users only and cannot be transferred, or shared or used by more than one Institution Permitted User.Institution acknowledges and agrees that Firecracker may exclude from the Service database any or all data resulting from use of the Service by Institution Permitted Users.
Institution shall not allow any Third Party (including any Student) to access or use either (a) the Service under Institution's Service accounts or (b) the Institution Applications.
2.4 Support.Firecracker help desk support is available via phone and email to Registered Students as part of the Service and to Institution in connection with the Institution Applications, in each case during Firecracker’s standard business hours, excluding weekends and Firecracker holidays.Firecracker will provide Institution and/or Registered Students with such additional support and/or training as is set forth in an Order, subject to Institution’s payment of the applicable fees set forth in the Order.
2.5 Changes.Firecracker reserves the right to improve, enhance and modify the Service and Institution Applications on a periodic basis in its sole discretion.Firecracker will notify Institution in writing (by electronic notice via the Institution Applications or otherwise) in advance of such changes if Firecracker anticipates that they will materially affect the use of the Institution Applications or Service or the manner in which the Institution Applications or Service operate or perform.
2.6 Restrictions on Use.Institution may use or allow the use of the Service, Institution Applications and Content only as expressly permitted under this Agreement.Institution shall not, and shall not attempt or allow any Third Party to: (a) copy, distribute, display, demonstrate, perform, rent, lease, lend, sublicense, transfer or make the Service, any Institution Application or Content, or any part, feature, function or user interface of any thereof, available to any Third Party or use the Service, any Institution Applications or Content on a service bureau basis or for the benefit of any Third Party; (b) use the Service or Institution Applications to store or transmit infringing, libelous, harassing, disparaging, obscene or otherwise unlawful or tortious material, or to store or transmit material in violation of Third Party privacy rights or applicable law, or for any illegal, harmful or fraudulent use or activities; (c) use the Service or any Institution Application to store or transmit any virus, worm, time bomb, Trojan horse or other code, file, script, agent or program intended to do harm; (d) interfere with or disrupt the integrity or performance of the Service, the Institution Applications or Content; (e) attempt to gain unauthorized access to any Service, any Institution Application or Content or their related systems or networks; (f) permit direct or indirect access to or use of the Service, any Institution Application or Content in a way that circumvents a contractual usage limit; (g) access the Service, any Institution Application or Content in order to build a competitive product or service; (h) decompile, reverse engineer or disassemble the Service or any Institution Application; (i) modify, adapt or create derivative works of or based on the Service, any Institution Application, Content, or Documentation; (j) modify, remove or obscure any copyright, trademark, patent or other notices or legends that appear on or during use of the Service, any Institution Application or Content, or on any Documentation; (k) frame or mirror any part of any Service, any Institution Application, Content, or Documentation; or (l) use the Service, any Institution Application, Content or Documentation in any manner that violates any applicable law or right of a Third Party.
Institution acknowledges and agrees that the Service, Institution Applications, Content, and Documentation are not to be used in clinical applications and that health care professionals must not rely on the Service or any Institution Applications or Content as a substitute for medical judgment.Firecracker in no way holds itself out as having or providing independent medical judgment or diagnostic services.Institution acknowledges and agrees that the Service, Institution Applications and Content shall not be used as a replacement for the experience and intuition of a qualified health care professional.
2.7 Ownership.(a) Firecracker.As between the Parties, Firecracker owns and retains all right, title and interest, including without limitation all patent, copyright, trademark, trade secret and other intellectual property and proprietary rights, in and to (i) the Service, the Institution Applications, the Content, the Documentation and Service Data, (ii) any and all ideas, suggestions, modifications, improvements or other feedback that Institution communicates to Firecracker or otherwise records, conceives or reduces to practice relating to any of the foregoing (all intellectual property and other rights in which shall be automatically assigned by Institution to Firecracker), and (iii) all improvements, modifications, translations and derivative works of any of the foregoing.This Agreement does not grant Institution any rights in any such Firecracker property except as expressly stated herein.All rights not expressly granted by Firecracker are reserved.
(b) Institution.As between the Parties, Institution owns and retains all right, title and interest, including without limitation all patent, copyright, trademark, trade secret and other intellectual property and proprietary rights, in and to Institution Data.
Institution grants Firecracker and its Affiliates a worldwide, limited-term license to host, copy, transmit and display Institution Data to the extent necessary for Firecracker to provide the Service and the Institution Applications, including the applicable Documentation, in accordance with this Agreement.
In addition, except as otherwise expressly provided in an Order, Institution hereby grants Firecracker and its Affiliates a non-exclusive, fully-paid, irrevocable, royalty-free, transferable, sublicenseable, perpetual, worldwide license to reproduce, distribute, prepare derivative works of, modify, adapt, translate, publicly perform, publicly display, digitally perform or otherwise use Submitted Content for any purpose and in any manner, including in combination with other content.
Institution is solely responsible for the accuracy, integrity and legality of Institution Data and Submitted Content and the means by which it acquired such Institution Data and Submitted Content.Institution represents and warrants that it owns or has the necessary rights, licenses, consents and permissions to create, upload, transfer or otherwise use, and to grant to Firecracker the rights set forth in this Agreement with respect to, all Institution Data and Submitted Content.Firecracker undertakes no responsibility to review Institution Data or Submitted Content.Upon written notice to Institution (except to the extent such notice is prohibited by law), Firecracker may remove any Institution Data or Submitted Content that, in the reasonable belief of Firecracker, violates this Agreement, infringes another's intellectual property rights or such removal is otherwise necessary to comply with law or any judicial, regulatory or other governmental order or request.
2.8 Security.(a) Firecracker will maintain commercially reasonable and appropriate measures designed to help secure information described herein against accidental or unlawful loss, access or disclosure.Firecracker will report to Institution as soon as reasonably practicable any breaches of security or unauthorized access to individually identifiable Institution Data, Education Records, Student Email Addresses, or Institution Permitted User usernames and passwords that Firecracker detects or becomes aware of and will use diligent efforts to remedy such breach of security or unauthorized access that is within its reasonable control.Firecracker reserves the right to suspend access to the Service and/or any or all Institution Applications in the event of a suspected or actual security breach.Firecracker shall not be liable for any damages incurred by Institution or any Student in connection with any unauthorized access resulting from the actions or inactions of Institution or any Third Party other than Firecracker’s representatives.
(b) Institution is responsible for (i) compliance by all Institution Permitted Users with this Agreement and (ii) maintaining the confidentiality of all Institution Permitted User usernames and passwords.Institution shall use commercially reasonable efforts to prevent unauthorized access to or use of the Institution Applications, Institution’s Service accounts and Institution Permitted User usernames and passwords, and shall notify Firecracker immediately of any unauthorized access or use or if any Institution account information is lost or stolen.Institution is entirely responsible for any and all activities that occur under its usernames and passwords whether or not authorized by Institution.If Institution becomes aware of any violation of this Agreement by an Institution Permitted User or of the Terms of Service by a Student, it will immediately notify Firecracker.
3. Fees.Institution shall pay Firecracker the fees specified in the applicable Order.Fees shall be invoiced and paid in accordance with the applicable Order.All fees are payable in U.S. dollars.All payments shall be made to an account specified by Firecracker in writing from time to time.All payments shall be made in full (without deduction or set-off) and are non-refundable except as otherwise expressly provided herein.Firecracker may assess a late payment charge on any overdue amounts equal to the lower of (a) one and a half percent (1.5%) per month or (b) the highest rate allowed by applicable law.Each late payment charge is payable within thirty (30) days of date of invoice.All fees are exclusive of, and Institution is responsible for payment of, all taxes, charges and duties applicable to the transactions under this Agreement, including without limitation any sales, use, value added, customs, excise, withholding and similar taxes and duties imposed by any government entity (“Taxes”), excluding Taxes based on Firecracker’s net income.If Firecracker is obligated to collect Taxes, then the appropriate amount will be added to the applicable invoice.If Institution is required to withhold or deduct any Tax from any payment due hereunder, Institution will increase the sum payable to Firecracker such that Firecracker receives an amount equal to the sum it would have received had Institution made no withholding or deduction.
4. Confidentiality; FERPA.
4.1 Confidentiality.Each Party agrees that upon receipt of any Confidential Information hereunder, it shall: (a) use such Confidential Information only for the purpose for which it was provided or made accessible by the disclosing party (“Purpose”); (b) maintain such Confidential Information in confidence and not disclose it except to its employees, affiliates, contractors, third party service providers, consultants or advisors (“Representatives”) who have a need to know such Confidential Information for the Purpose, provided that such Representatives are legally bound by written obligations consistent with the provisions of this Section, and (ii) the receiving party shall be responsible for any breach by its Representatives; and (c) use the same degree of care as it uses to protect its own confidential information of a similar nature, but not less than reasonable care.“Confidential Information” means any technical, business, marketing, sales, affiliate, customer, licensor or other supplier, financial, pricing, employee or other information disclosed hereunder in any form or to which a Party has access, which is either (i) marked or identified as confidential at the time of disclosure, (ii) of a nature generally understood to be confidential provided the disclosing party generally treats it as confidential, or (iii) Education Records.Institution acknowledges and agrees that the Service, Institution Applications, Content, Documentation and Feedback embody valuable trade secrets of Firecracker and shall be deemed and treated as Firecracker Confidential Information hereunder, regardless of the applicability of any exceptions in Section 4.2.The terms of this Agreement constitute Confidential Information of each Party.“Confidential Information” shall not include aggregated or de-identified records or information that does not identify Institution or any Student.
4.2 Exceptions.The obligations in Section 4.1 will not apply with respect to information that the receiving party can demonstrate: (a) was in its possession at the time of receipt hereunder, without any obligation of confidentiality with respect thereto; (b) is or becomes generally available to the public through no breach of Section 4.1 by the receiving party or its Representatives; (c) following receipt hereunder, is received from a Third Party under no duty of confidentiality; or (d) is independently developed by or for the benefit of the receiving party without use of or resort to Confidential Information of the disclosing party.The receiving party may disclose Confidential Information to the extent required to comply with applicable law or judicial or governmental order or process, provided that the receiving party, to the extent legally permitted, promptly notifies the disclosing party in writing in advance of such required disclosure and reasonably cooperates with the disclosing party, at the disclosing party’s expense, in its efforts to limit such disclosure or obtain a protective order or other confidential treatment.
4.3 Return of Information.Upon expiration or termination of this Agreement, the receiving party shall return to the disclosing party all Confidential Information of the disclosing party obtained in the performance of this Agreement, including all copies thereof, under its possession or control or under the possession or control of its Affiliates, or, at the disclosing party’s option, destroy or purge its, and cause the purging of its Affiliates’, systems and files of all such Confidential Information and, upon request by the disclosing party, shall deliver to the disclosing party a written confirmation that such destruction and purging have been carried out.
4.4 FERPA. (a) The Service collects certain information regarding Students provided by Institution or provided by Registered Students during the Service account registration process and throughout Registered Students’ use of the Service as part of the inherent and standard operation of the Service.To the extent such information constitutes Education Records, Institution provides and Firecracker receives such information without need for student consent in accordance with the “directory information” and/or “school official” exceptions specified at 34 C.F.R. 99.31(a)(1) or (a)(11).Firecracker shall not disclose Education Records or personally identifying information about students contained therein, except as authorized by law.
(b) If an individual who is a Student of Institution subscribes to the Service or other Firecracker products or services directly (and not under a Service Subscription purchased by Institution hereunder or another institution), any information provided by that individual in accordance with such subscription(s) shall not be subject to FERPA as the individual would be acting in his/her individual capacity only.
(c) Institution agrees that nothing in this Agreement shall be construed to preclude or limit Firecracker’s (i) use or retention during and after expiration or termination of this Agreement of Service Data or (ii) communications to Students regarding other Firecracker products or services.
4.5 Publicity; Reference.Institution agrees that Firecracker may: (a) list Institution and an Institution-approved logo on Firecracker’s customer lists (including its website customer list) and otherwise publicly identify Institution as a Firecracker customer; (b) publish a mutually agreed press release announcing the relationship with Institution hereunder; and (c) publish a mutually agreed "case study."If Firecracker refers any potential customer to Institution, Institution may, subject to confidentiality obligations herein, freely discuss all aspects of, and Institution’s satisfaction with, Firecracker’s Institution Program with such potential customer.
5. Warranties; Service Level; Disclaimers.
5.1 General.Each Party represents and warrants to the other Party that: (a) it has the necessary corporate or equivalent power and authority to enter into this Agreement; and (b) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or equivalent action.
5.2 Service Warranty.Firecracker warrants that, during the term of each Service Subscription, (a) the Service and Institution Applications will perform substantially in accordance with the applicable Documentation and (b) it will not materially decrease the functionality of the Service or the Institution Applications.
5.3 Exclusions.The warranties set forth in Section 5.2 and 5.3 do not apply if the Service or an Institution Application has been used other than in accordance with this Agreement, the applicable Documentation or other Firecracker written instructions.Further, these warranties will not apply to non-conformities caused by any software, hardware or service not provided by Firecracker or acts of any Third Party not under Firecracker’s control.
5.4 Disclaimer.THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF, AND FIRECRACKER HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, AND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OWNERSHIP OR NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FIRECRACKER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICE OR THE INSTITUTION APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS WILL BE CORRECTED, THAT THE SERVICE OR THE INSTITUTION APPLICATIONS WILL MEET INSTITUTION'S OR STUDENTS’ REQUIREMENTS, THAT ANY OR ALL DATA PROVIDED THROUGH THE SERVICE OR INSTITUTION APPLICATIONS WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR FREE OF HARMFUL COMPONENTS OR THAT ANY DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
6.1 Indemnification by Firecracker.Firecracker shall indemnify, defend and hold Institution and Institution Permitted Users (collectively, the “Institution Indemnified Parties”) harmless against any Third Party claim that a Student’s use of the Service in accordance with the Terms of Service or Institution’s use of the Institution Applications in accordance with this Agreement infringes or violates any Third Party copyright or trade secret or any Third Party United States patent or trademark or misappropriates any Third Party trade secret, in each case except to the extent such claim is indemnifiable by Institution under Section 6.2; provided that Firecracker and its Affiliates and licensors shall have no liability to the extent of any modification of the Service or any Institution Application or Content not made by Firecracker or combination of the Service or any Institution Application or Content with other materials.If the Service or any Institution Application is or in Firecracker’s view is likely to be found to infringe, Firecracker, at its cost and expense, shall, at its option: (a) procure the right to enable continued use of the infringing Service or Institution Application; (b) modify the infringing Service or Institution Application to be non-infringing; or (c) terminate (i) the applicable Institution Application subscription in the case of an infringing Institution Application or (ii) this Agreement and all subscriptions in the event the Service is infringing, and in such event refund to Institution the applicable prepaid but unused fees for the year in which such termination occurs.This Section 6.1 states the Firecracker’s sole and exclusive liability, and Institution’s sole and exclusive remedy, regarding infringement or misappropriation of any intellectual property rights of a Third Party.
6.2 Indemnification by Institution.Institution shall indemnify, defend and hold Firecracker and its Affiliates and its and their officers, directors, employees and agents (collectively, the “Firecracker Indemnified Parties”; together with the Institution Indemnified Parties, the “Indemnified Parties”) harmless against any Third Party claim that Institution Data or Institution’s use of any Institution Application or the Service in breach of this Agreement infringes or violates any Third Party copyright or trade secret or any Third Party United States patent or trademark or misappropriates any Third Party trade secret, except to the extent such claim is indemnifiable by Firecracker under Section 6.1.This Section 6.1 states Institution's sole and exclusive liability, and Firecracker's sole and exclusive remedy, regarding infringement or misappropriation of any intellectual property rights of a Third Party.
6.3 Indemnification Procedures.The Indemnified Party shall promptly notify the indemnifying Party of any claim which might result in indemnification.The Indemnified Party shall reasonably cooperate with the indemnifying Party, at the expense of the indemnifying Party.The indemnifying Party is permitted to control fully the defense and settlement of any claim under Section 6.1 or Section 6.2, provided that the indemnifying Party shall not settle any claim without the consent of the Indemnified Party, not to be unreasonably withheld.The Indemnified Party may, at its own cost, elect to have its own counsel, reasonably acceptable to the indemnifying Party, in attendance at all proceedings and substantive negotiations relating to such claims.
7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL FIRECRACKER OR ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES OR FOR LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS, CORRUPTION OR MODIFICATION OF DATA, OR OTHER PECUNIARY LOSS, ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE INSTITUTION APPLICATIONS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL THE TOTAL LIABILITY OF FIRECRACKER AND AFFILIATES UNDER OR IN CONNECTION WITH THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION AND WHETHER UNDER THEORIES OF BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID BY INSTITUTION UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
8. Term and Termination.
8.1 Term.The term of this Agreement shall be in effect for as long as Institution subscribes to the Services unless earlier terminated by a Party in accordance with this Agreement (the “Term”).The term of each subscription shall be as specified in the applicable Order.
8.2 Termination for Breach.If either Party materially breaches or fails to comply with any provision of this Agreement, the other Party may terminate this Agreement upon thirty (30) days’ prior written notice to the breaching Party unless the breach is cured within the notice period.
8.3 Suspension.If Institution is delinquent in the payment of fees to Firecracker when due, or if Institution breaches any of the provisions of Section 2.2 or 2.6, then, in addition to any other available rights and remedies, Firecracker may suspend providing the Institution Applications to Institution, without liability, until such breach is cured.Any such suspension shall be effective upon seven (7) days’ prior written notice in the case of a payment delinquency, or immediately upon written notice in the case of any other event specified above.
8.4 Effects of Termination.Upon the expiration or termination of this Agreement for any reason: (a) all rights granted by Firecracker under this Agreement, including without limitation all Institution Application subscriptions, shall automatically terminate; and (b) Institution shall immediately discontinue all use of the Institution Applications.Any Service Subscription in effect at the date of termination or expiration of this Agreement shall continue in effect until the end of its term.
8.5 Survival.Sections 1 (Definitions), 2.6 (Restrictions on Use), 2.7 (Ownership), 3 (Fees), 4 (Confidentiality; FERPA), 5.5 (Disclaimer), 6 (Indemnification), 7 (Limitation of Liability) and 8.4 (Effects of Termination), this Section 8.5 and Section 9 (General Provisions) shall survive any termination or expiration of this Agreement.
9. General Provisions.
9.1 Governing Law.This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any conflicts of laws principles that would result in the application of the law of any other jurisdiction.Each Party submits to the exclusive jurisdiction of the state and federal courts located in Suffolk County, Massachusetts for any action or proceeding arising out of or relating to this Agreement and expressly waives any objection it may have to such jurisdiction or the convenience of such forum.
9.2 Trademarks.Each Party and its licensors reserve all rights in and to their respective trademarks, trade names, service marks and logos (“Marks”) and no right to use, modify or reproduce any Marks are granted except as expressly provided in this Agreement.Each Party agrees not to take any action that may jeopardize the owner’s rights in and to its Marks.Any and all uses of Marks, or applications for or registrations of Marks, shall inure to the benefit of the owner thereof.
9.3 Export Compliance.The Service and Institution Applications may be subject to export laws and regulations of the United States and other jurisdictions.Each Party represents that it is not named on any U.S. government denied-party list.Institution shall not access or use or permit access or use of the Service or any Institution Application in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
9.4 Relationship of the Parties.The Parties shall be deemed independent contractors for all purposes hereunder.This Agreement does not constitute a partnership, joint venture or agency between the Parties.Neither Party is an agent of the other Party and neither Party shall have any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of the other Party or to bind the other Party in any way whatsoever.Institution acknowledges that Firecracker may provide the Service and Institution Applications, and services that are the same as or similar to the Service or Institution Applications, to Third Parties, including competitors of Institution.
9.5 Amendment; Waiver.Firecracker may change the terms of this Agreement at any time, and Firecracker will notify Institution of any change prior to the date such change is effective. If any such change has a materially detrimental effect on Institution, Institution may cancel its subscription prior to such change becoming effective by notifying Firecracker within fourteen (14) days of Firecracker’s notice of such change.Institution’s cancellation shall be effective as of the date of the change to this Agreement and Institution shall receive a pro-rata refund for any amounts paid in respect of any period after that date. Any failure or delay by a Party to enforce or exercise any right or remedy shall not be deemed a waiver of such or any other right or remedy.Any waiver of any breach shall not be deemed to be a waiver of any other or subsequent breach.
9.6 Severability.If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.7 No Third Party Beneficiaries.Institution acknowledges that Firecracker’s third party licensors are direct and intended third party beneficiaries of this Agreement and are entitled to enforce this Agreement directly against Institution to protect their contractual, proprietary or other legal rights.In no event shall Firecracker’s licensors be deemed parties to this Agreement and neither Institution nor any Third Party including affiliates shall have a right to raise claims pursuant to this Agreement against such third party licensors.Subject to the foregoing, this Agreement shall not benefit, or create any right or cause of action in or on behalf of, any person or entity other than the Parties.
9.8 Force Majeure.Except for payment obligations, neither Party will be liable for any delay or failure to perform any obligations under this Agreement caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of civil or military authority, fires, floods, failure or delay of the Internet or denial of service attack.
9.9 Assignment.Neither this Agreement (including any Order) nor the rights or obligations of Institution hereunder may be assigned or delegated, in whole or in part, or in any manner, including by operation of law, without the prior written consent of Firecracker.For purposes of this paragraph, a change of control of Institution (as “control” is defined in the definition of “Affiliate” in Section 1) shall be deemed an assignment.Firecracker may assign this Agreement and all outstanding Orders, as a whole, to an Affiliate or in connection with a merger or reorganization or the sale of all or substantially all of its stock, or substantially all of the business or assets of Firecracker relating to the Service.Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns.
9.10 Remedies.Except as otherwise expressly provided in this Agreement, all remedies are cumulative and are in addition to every other remedy in this Agreement or existing at law, in equity, by statute or otherwise.Each Party agrees that, in addition to any other remedies available at law or in equity, the other Party shall be entitled to seek injunctive relief to enforce the provisions of this Agreement protecting its Confidential Information and intellectual property rights.
9.11 Notices.All notices or other communications required or permitted to be given under this Agreement shall be in writing (unless otherwise specifically provided herein) and delivered or addressed to Firecracker, Inc. 25 West Street, 4th Floor, Boston, MA 02111, Attn:CFO.Institution notices may be emailed.Firecracker notices will be deemed delivered upon the first business day after being sent.Institution notices will be deemed delivered upon receipt by Firecracker.
9.12 Entire Agreement. This Agreement, including the Orders, constitutes the entire agreement and understanding, and supersedes all prior oral and written agreements, representations, certifications, understandings, arrangements and communications, between the Parties with respect to the subject matter hereof.In the event of any conflict between the terms of this Agreement and the terms of any Order, the terms of this Agreement shall prevail except to the extent such Order expressly supersedes any specified provisions of this Agreement.The Parties agree that any term or condition stated in any purchase order, acknowledgment or confirmation that are different from or in addition to the terms of this Agreement or the applicable Order shall not be binding on the parties, even if signed and returned.