Smore Bulk Terms and Conditions

Updated August 23, 2016

These terms and conditions (“Terms”) effective as of August 23, 2016 (“Effective Date”) govern (“Customer”) use of the cloud based marketing services (the “Services”). Customer agrees that it has read, understands, and agrees to Smore Terms and Conditions, Smore Privacy Policy, these Smore Bulk Terms and Conditions, and the terms of any order form that Customer enters into with Fireplace for the Services (each an “Order”). The initial Order is attached hereto as Exhibit A. Exhibit A and any other exhibits attached hereto are incorporated by this reference into these Terms. In the event of a conflict between these Terms and an Order or exhibit, the following order of precedence will govern: the Terms, the Order, and then the other exhibits, if any.

1. SERVICES AND LICENSE

  1. Services. Fireplace hereby grants Customer the right to access the Services via the Services available at a URL specified by Fireplace in accordance with the terms and conditions described in the applicable Order for the term specified therein, for Customer’s internal business purposes.
  2. Modification. The Services are subject to modification from time to time at Fireplace’s sole discretion. Fireplace will provide Customer prior notice of any material modifications. Fireplace reserves the right to suspend Customer’s access to the Services upon notice to Customer: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of these Terms.
  3. Customer Data. Customer hereby grants to Fireplace a limited, non-exclusive, non-transferable (except as permitted in Section 10), royalty-free license during the Term to reproduce, translate, encode, and use the Customer Data for the purpose of providing and improving the Services to Customer and to fulfill Fireplace’s obligations under these Terms; provided, however, Fireplace may use Customer Data on an aggregated and anonymized basis to improve the Services.

2. RESPONSIBILITIES


  1. Restrictions. Customer will not, and will not permit any Authorized User (as defined below) or third party to, (i) reverse engineer, decompile, decrypt, extract, disassemble or otherwise attempt to discover the source code of the Software, (ii) modify, translate, or create derivative works based on the Software, or (iii) alter, modify, change, remove, or otherwise transform or vary any copyright, trademark, or other intellectual property notices included in the Software or on the Services. Customer shall not use the Services for timesharing or service bureau purposes unless permitted by Fireplace in the applicable Order. Customer shall not use the Services in violation of any applicable laws or regulations, including but not limited to the CAN-SPAM Act of 2003.
  2. Customer Data. Customer shall be exclusively responsible for creating, modifying, entering or reentering all data, content, and other information uploaded to the Services (“Customer Data”). Customer will not provide, post or transmit any Customer Data to or via the Service that: (i) infringes, misappropriates or violates the rights of any third person, including intellectual property rights and rights or publicity/privacy; (ii) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (iii) is deceptive, defamatory, obscene, pornographic or unlawful.
  3. Access. Customer shall be solely responsible for creating its administrative account (“Admin Account”). Once Customer has created an Admin Account, Customer will be permitted to create up to the total number of user accounts specified in the Order (each, a “User Account”). User Account subscriptions can be used concurrently by and up to the number of paid User Accounts identified in the Order. Each person who accesses an Admin Account or User Account must be an employee, consultant, contractor or agent of Customer (each, an “Authorized User”). Customer will immediately notify Fireplace in the event Customer has reason to believe that the security of its Admin Account or any User Account has been compromised.
  4. Permissions. Customer shall be exclusively responsible for obtaining all required permission from a parent and/or guardian of all students using the website and for student access into the website through the ("Classroom" feature). Customer will be responsible for handling all requests from a child's parent for updating, changing, or removing, any information or content requested. Customer will immediately notify Fireplace in the event that assistance is required to permanently remove a child's information which was explicitly requested by the child’s parent or guardian.

3. OWNERSHIP

  1. IP Rights” means all forms of intellectual property rights and protections throughout the world, including, but not limited to, any (i) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof), (ii) copyrights, (iii) Internet domain names, trademarks, Services marks, and trade dress, together with all goodwill associated therewith, (iv) trade secrets, (v) rights in databases and designs (ornamental or otherwise), (vi) moral rights, rights of privacy, rights of publicity and similar rights, and (vii) and any other proprietary rights and protections, whether currently existing or hereafter developed or acquired, whether published or unpublished, arising under statutory law, common law, or by contract, and whether or not perfected, including all applications, disclosures and registrations with respect thereto.
  2. Ownership by Fireplace. As between the parties, Fireplace and its Suppliers shall retain all right, title and interest in and to the Services and all improvements thereto, including all IP Rights therein.
  3. Ownership by Customer. As between the parties, Customer owns all right, title, and interest in and to the Customer Data, including all IP Rights therein.
  4. Removal of Data. Prior to the last day of the Term, Customer shall be responsible for the removal all Customer Data from the Services. Customer acknowledges and agrees that Fireplace shall have no liability to Customer or any third party for deletion of any Customer Data from the Services following the date of termination or expiration of Customer’s right to access and use of the Services.

4. PAYMENT

  1. Fees. Customer will pay the fees for the Services agreed to in the applicable Order (the “Fees”). In the event that Customer wishes to increase the number of User Accounts beyond the number authorized in the Order, Customer shall be required to pay additional fees associated with the increased number of Customer Accounts, prorated for the remainder of the then current term.
  2. Payment. All payments will be made in accordance with the payment schedule described in the applicable Order and will be due within thirty (30) days of invoice. Fireplace reserves the right to modify its Fees or cancel or modify the Services at the expiration or termination of the Term of the applicable Order.
  3. Taxes. Fees under these Terms are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding taxes based on Fireplace’s net income) unless Customer has provided Fireplace’s with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Fireplace on account thereof.

5. CONFIDENTIAL INFORMATION

  1. Confidential Information” means any and all information prepared or delivered to the receiving party by the disclosing party or its representatives (including information or data received by the disclosing party from a third party and as to which the disclosing party has confidentiality obligations), that is known to the receiving party, or should be known to a reasonable person given the facts and circumstances of the disclosure, as being treated as confidential or proprietary by the disclosing party.
  2. Confidentiality. Each party agrees to keep the Confidential Information of the other party confidential and to take reasonable precautions designed to protect against the unauthorized access, use or disclosure of the disclosing party’s Confidential Information. The receiving party shall not disclose or use the disclosing party’s Confidential Information for any purpose, except as is necessary to perform its obligations hereunder. The receiving party may disclose the Confidential Information only to those employees, agents and subcontractors who have a legitimate business reason to have such access for purposes of performing its obligations under these Terms, and are subject to the requirement to abide by a non-disclosure agreement substantially similar to these Terms’ non-disclosure obligations.
  3. Exclusions. Confidential Information does not include information (i) that is published or available to the public other than by breach of these Terms; (ii) otherwise rightfully received by the non-disclosing party from a third party without obligations of confidentiality; (iii) independently developed by the non-disclosing party’s employees having no access to the disclosed information; or (iv) known to the non-disclosing party before receiving the Confidential Information from the disclosing party under this or any prior agreement of the parties; (v) disclosed by the disclosing party to a third party without restrictions. In addition, the receiving party may disclose the disclosing party’s Confidential Information to the extent such disclosure is required by applicable law or order of a court; provided the receiving party will provide prompt written notice of such required disclosure and reasonably assist the disclosing party, at the disclosing party’s request and expense, to seek an appropriate protective order.

6. INDEMNIFICATION

  1. Fireplace. Fireplace will indemnify, defend and hold Customer and its directors, officer, employees, and agents (“Related Parties”) harmless from and against all claims, actions, expenses, losses, and liabilities, including reasonable attorney’s fees, arising or relating to any claim that the Services, or the use thereof in accordance with these Terms, infringe any third party’s IP Rights.
  2. Customer. Customer shall indemnify, defend and hold harmless Fireplace and its Related Parties from and against any and all claims, suits, actions, or other proceedings for any loss or damage (including reasonable attorney’s fees) brought by third parties against Fireplace or its Related Parties to the extent: (i) based on or arising from any claim that the Customer Data infringes or constitutes a wrongful use of any third party’s IP Rights, or any right of publicity or privacy, or is libelous or defamatory; or (ii) caused by, relating to or arising out of Customer’s use of the Services, excluding claims indemnified by Fireplace in Section 6(a) above.
  3. Process. The party seeking indemnification pursuant to this Section (the “Indemnified Party”) shall provide the party obligated to provide such indemnification (the “Indemnifying Party”) with: (i) prompt written notification of any such claim; (ii) sole control and authority over the defense or settlement thereof; and (iii) all available information and reasonable assistance necessary to settle and/or defend any such claim, at the Indemnifying Party’s expense, provided that if any settlement requires any action or admission by the Indemnified Party, then the settlement will require the Indemnified Party’s prior written consent. Failure by the Indemnified Party to provide prompt notice of a claim or to provide such control, authority, information or assistance shall not relieve the Indemnifying Party of its obligations under this Section, except to the extent that the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party may have its own counsel present at and participating in all proceedings or negotiations relating to a claim, at the Indemnified Party’s own expense.

7. DISCLAIMER

EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THESE TERMS, THE SERVICES ARE PROVIDED “AS-IS,” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, OR ERROR FREE, OR THAT ANY CONTENT, INCLUDING CUSTOMER CONTENT OR THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. FIREPLACE AND ITS SUPPLIERS HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

8. LIMITATION OF LIABILITY

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY, WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOST SAVINGS, EVEN IF SUCH PARTY IS INFORMED OF THEIR POSSIBILITY (SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY). EXCEPT FOR PAYMENTS MADE PURSUANT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, THE TOTAL LIABILITY OF EITHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO FIREPLACE HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL FIREPLACE’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS.

9. TERM AND TERMINATION

  1. Term. These Terms shall be effective upon the Effective Date and shall continue until terminated by either party as permitted in these Terms.
  2. Orders. Each Order shall be effective upon written acceptance by Fireplace (including via email) and shall continue for the Term specified in the Order unless terminated sooner as permitted by these Terms.
  3. Termination for Cause. Either party will have the right to terminate these Terms and all Orders for breach of any material term or condition of these Terms (or with respect to an Order, a breach of a material term or condition of such Order) and failure to cure such breach within thirty (30) days after written notice.
  4. Termination for Bankruptcy. Either party may terminate these Terms and all Orders upon written notice if: (i) the other party becomes insolvent or voluntary or involuntary bankruptcy proceedings are instituted by or against such other party; (ii) the other party makes an assignment for the benefit of creditors or ceases to operate as a going concern; or (iii) a receiver is appointed for such other party.
  5. Effect of Termination. The following provisions will survive termination or expiration of these Terms: Sections 3 and 5-10.

10. GENERAL

The parties disclaim the application of the United Nations 1980 Convention on contracts for the International Sale of Goods. These Terms are governed by the laws of the State of Washington, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Washington. The parties hereby submit to the jurisdiction of the state and federal courts located in Kings County, Washington and agree that such courts shall be the exclusive forum for the resolution of any disputes related to these Terms. If any provision of these Terms is ruled invalid, such invalidity shall not affect the validity of the remaining portions of these Terms and a valid provision, which most closely approximates the intent and economic effect of the invalid provision, will be substituted. Neither party may assign or transfer these Terms or any part thereof without the prior written consent of the other party, except that either party may assign or transfer these Terms without such consent in connection with a divestiture, reorganization, merger, acquisition, consolidation or similar such transaction. Nothing contained in these Terms is intended to constitute Customer and Fireplace as partners or joint ventures, or the employees, agents, or representatives of one another. Nothing contained in these Terms is intended to give rise to a partnership or joint venture between the Parties or to impose upon the Parties any of the duties or responsibilities of partners or joint venturers. Fireplace will not be held responsible for any delay or failure in performance of any part of these Terms to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authorities, Act of God or by the public enemy, acts or omissions of carriers, or other causes beyond the reasonable control of Fireplace.