Legal Terms

Terms of use

NOVEMBER 15, 2018


1. Agreement.

These Terms of Service (the “Terms”) are made by and between
the party on whose behalf they are accepted (“Subscriber”) and Firekast and
are effective as of the date they are accepted by Subscriber.
“Firekast” is a Delaware corporation, with offices at 2711
Centerville Road, Suite 400, Wilmington, Delaware 19808, U.S.A. The complete
subscription agreement including these Terms (the “Agreement”) is made for the
purpose of granting Subscriber a limited subscription to use Firekast’s video
streaming platform, support or other services (the

2. Firekast’s Obligations

1. Access to the Services.

Firekast will make the Services available to Subscriber according to one or
more online or written ordering documents (each a “Service Order”). The
Agreement includes each Service Order incorporating the Agreement.

2. Personnel and Performance.

Firekast enters into the Agreement on behalf of itself and its Affiliates.
An “Affiliate” of a party is any entity (a) that the party Controls; (b)
that the party is Controlled by; or (c) with which the party is under common
Control, where “Control” means direct or indirect control of fifty percent
(50%) or more of an entity’s voting interests (including by ownership).

3. Documentation.

Firekast will make online documentation available at (the
“Documentation”) that describe: (a) Firekast software made accessible as
part of the Services (“Firekast Software“) and (b) usage guides for the

4. Security.

Firekast will maintain administrative, physical, and technical safeguards
for the security and integrity of the Services (the « Security Measures »)
consistent with industry standard practices. Firekast will store, process,
transmit and disclose electronic data and configurations submitted to the
Services at the direction of or on behalf of Subscriber (« Subscriber Data
») only according to the Agreement and the Documentation. The Services,
independent of Subscriber Data, will not transmit code, files, scripts,
agents, or programs intended to do harm, including, viruses, worms, time
bombs, and Trojan horses (« Malicious Code »).

5. Protection of Subscriber Personal Data.

To the extent Firekast processes any Subscriber Personal Data contained in
Subscriber Data on behalf of Subscriber, Firekast will maintain
administrative and technical safeguards to secure those Personal Data.
Firekast commits not use make use of Personal Data for other reasons than
ensure a proper use of the Services.

6. Storage of Subscriber Data.

Firekast will store Subscriber Data during the term of any Service Order
that incorporates the Agreement.

3. Subscriber’s Obligations.

1. Subscriber Data.

As between Firekast and Subscriber, Subscriber is responsible for Subscriber
Data, including video contents, and the provision of Subscriber Data to the
Services according to the Agreement.

2. Personnel and Performance.

Subscriber will be responsible for the performance of its personnel
(including employees and contractors) in compliance with the Agreement.
Subscriber enters into the Agreement on behalf of its Affiliates that make
use of the Services.

3. Non-Firekast Services.

Subscriber may choose to use services not provided by Firekast
(“Non-Firekast Services“) with the Services and in doing so grants Firekast
permission to interoperate with the Non-Firekast Services as directed by
Subscriber or the Non-Firekast Services. Unless specified in a Service
Order: (a) Firekast does not warrant or support Non-Firekast Services, (b)
as between Firekast and Subscriber, Subscriber assumes all responsibility
for the Non-Firekast Services and any disclosure, modification or deletion
of Subscriber Data by the Non-Firekast Services and (c) Firekast shall have
no liability for, and Subscriber is not relieved of any obligations under
the Agreement or entitled to any refund, credit, or other compensation due
to any unavailability of the Non-Firekast Services or any change in the
ability of Firekast to interoperate with the Non-Firekast Services.

4. Third Party Reports.

As an intermediary, Firekast may receive notices from third parties
(“Reporters”) regarding Subscriber Data or Subscriber’s use of the Services
(“Reports”). Upon receipt of a Report, Subscriber will address the Report
promptly with the Reporter, including informing the Reporter that Subscriber
(and not Firekast) is the appropriate party to address the matter.

5. Responsibilities.

Subscriber (a) shall comply and use the Services in accordance with the
Firekast Terms herein available at; (b) shall use the Services in accordance with the applicable
Documentation; (c) shall be responsible for using reasonable efforts to
prevent unauthorized access to or use of the Services; (d) shall promptly
notify Firekast of any unauthorized access or use of the Services; (e) shall
respond to Reports in accordance with Section 4.4 (Third Party Reports) and
take reasonably appropriate action to resolve the reported matter; (f) shall
not use the Services to store, transmit or display Subscriber Data for
fraudulent purposes or in violation of applicable laws and governmental
regulations; (g) shall not make the Services available to, or use the
Services for the benefit of, anyone other than Subscriber’s own personnel or
end users; (h) shall not interfere with or disrupt the integrity or
performance of the Services or any third-party technology contained therein;
(g) shall not attempt to gain unauthorized access to any of Firekast’s
datacenters, systems or networks; (i) shall not permit direct or indirect
access to or use the Services in a way that circumvents a usage or capacity
limit of the Services or use the Services to access or use any of Firekast’s
intellectual property except as permitted under the Agreement; (j) shall not
sell, resell, license, sublicense, distribute, redistribute, rent, or lease
the Services except as integrated with its own offerings that provide
additional functionality to its end users; (k) subject to Section 8.2
(Firekast Software), shall not copy, modify or create a derivative work of
the Services or any part, feature, function, or user interface thereof; (l)
shall not access the Services or use the Documentation to develop a
competitive product or service; (m) subject to Section 9.2 (Firekast
Software), except as permitted by applicable laws or governmental
regulations, shall not reverse engineer, decompile, translate, disassemble
or otherwise attempt to extract any or all of the source code of the
Services; (n) shall not alter, remove or obscure any copyright, trademark or
other proprietary notices or confidentiality legend on the Services; (o)
shall obtain and maintain appropriate equipment and ancillary services
needed to connect to, access or otherwise use the Services, including
modems, hardware, servers, software, operating systems and internet access;
(p) obtain and maintain any required consents necessary to permit the
processing of Subscriber Data by Firekast under the Agreement; and (q)
obtain and maintain any consents necessary to permit the processing by
Firekast of the personal information of Subscriber’s personnel that serve as
Subscriber’s designated contact for purposes of the Services and the

6. Service Notices.

If Firekast becomes aware that Subscriber may violate Subscriber’s
obligations under this Section 3 (Subscriber’s Obligations), Firekast will
notify the abuse by email (the “Service Notice”) and request Subscriber to
take reasonably appropriate action, including ceasing problematic usage,
changing a configuration, updating account credentials or removing
applicable Subscriber Data. If Subscriber fails to comply with a Service
Notice within the time period set forth in the Service Notice, Firekast may
block Subscriber’s access to the Services until the requested action is
taken. If Subscriber fails to take the required action within ten (10) days
or fails to comply with Subscriber’s obligations under this Section 3
(Subscriber’s Obligations) on two or more occasions during any rolling
twelve (12) month period, Firekast may terminate the Agreement immediately
for cause. Firekast also responds to notices of alleged copyright
infringement and may block access to the applicable Service or terminate
accounts of repeat infringers according to the process set out in the U.S.
Digital Millennium Copyright Act of 1998. All limitations of access,
suspensions, and terminations for cause shall be made in Firekast’s sole
discretion and Firekast shall not be liable to Subscriber or any third party
for any termination of Subscriber’s account or access to the Services.

4. Term and Termination.

1. Term.

These Terms are effective during the term of any Service Order that
incorporates the Agreement. The term of a Service Order shall be specified in
the Service Order. Service Orders shall renew for successive terms, unless
either party gives the other at least ninety (90) days’ notice of nonrenewal
at the end of the applicable term.

2. Termination for Cause.

In addition to Firekast’s right to terminate the entire Agreement under
Section 3.6 (Service Notices), Subscriber or Firekast may terminate the entire
Agreement for cause (a) upon 30 days’ written notice to the other of a
material breach if the breach remains uncured at the expiration of the notice
period or (b) if the other party (i) becomes the subject of a proceeding
relating to insolvency, receivership, liquidation or assignment for the
benefit of creditors to the extent permitted by applicable laws or
governmental regulations, (ii) goes out of business or (iii) ceases its

3. Survival.

Any term or condition that by its nature is clearly intended to survive the
expiration or termination of the Agreement, shall survive any expiration or
termination of the Agreement, including Sections 3.5 (Subscriber’s
Obligations), Section 6.1 (Fees), Section 6.5 (Refund or Payment upon
Termination), Section 7 (Confidentiality), Section 8 (Licenses and Proprietary

4. Beta Services.

From time to time, Firekast may offer services identified as beta, pilot,
developer preview, non-production, evaluation or by a description of similar
import (“Beta Services”). Subscriber may accept or decline Beta Services. If
accepted by Subscriber, Beta Services: (a) are provided for evaluation
purposes; (b) may be relied on by Subscriber for production use at its own
risk; (c) may not be supported; and (d) may be subject to additional terms.
Unless otherwise stated, any Beta Services trial period will expire on the
date that a version of the Beta Services becomes generally available or is
discontinued. Firekast may discontinue Beta Services at any time in its sole
discretion and may never make Beta Services generally available. All Beta
Services are provided « as is » and « as available » without any warranty of
any kind.

5. Fees and Payment.

1. Fees.

Subscriber will pay all fees specified in Service Orders and provide accurate
and updated billing contact information. Except as set forth in a Service
Order, all fees payable under the Agreement shall be made in U.S. Dollars.
Minimum commitments in Service Orders are (a) based on Services purchased and
not actual usage; (b) non-cancelable; and (c) cannot be decreased during the
specified term. Fees paid for minimum commitments are not refundable.
Subscriber’s payments of fees are neither contingent on the delivery of any
future functionality or features nor dependent on statements not set forth in
the Agreement or any Service Order.

2. Invoicing Terms.

If the Service Order specifies that payment will occur by a method other than
a credit card, Subscriber will provide a purchase order number in the
applicable amount (or reasonable alternative proof of Subscriber’s ability to
pay the fees specified in a Service Order), and promptly notify Firekast of
any changes necessary for payment of an invoice. Firekast will invoice
Subscriber either monthly or according to the billing frequency stated in the
Service Order. Invoices to be paid by credit card are due on the invoice date,
all other invoices are due net 30 days from the invoice date. If any invoiced
amount is not received by Firekast by the due date, then without limiting
Firekast’s rights or remedies: (a) those charges may accrue late interest at
the rate of 1.5% of the outstanding balance per month, or the maximum rate
permitted by law, whichever is lower and (b) Firekast may condition future
subscription renewals and Service Orders on shorter payment terms. If
Subscriber is paying for Services by credit card, Subscriber will provide
Firekast’s authorized payment processor with valid credit card information and
promptly notify Firekast’s authorized payment processor of any changes
necessary to charge the credit card. The provision of credit card information
to Firekast’s authorized payment processor authorizes Firekast, through its
authorized payment processor, to charge the credit card for all Services
specified in a Service Order, and any renewal subscription. Subscriber
acknowledges that Firekast will not have access to Subscriber’s credit card

3. Suspension of Service and Acceleration.

If any amount owing by Subscriber is 30 or more days overdue (or 15 or more
days overdue in the case of invoices to be paid by credit card), Firekast may,
without limiting any rights and remedies, accelerate Subscriber’s unpaid fee
obligations to become immediately due and payable, and block the provision of
Services to Subscriber until the overdue amounts are paid in full. Firekast
will give Subscriber at least 10 days’ prior notice that its account is
overdue, in accordance with Section 19 (Manner of Giving Notice), before
blocking Services to Subscriber.

4. Payment Disputes.

Firekast will not exercise any rights to block Services, accelerate payments,
impose late charges or change payment terms under Section 6.2 (Invoicing
Terms) and Section 6.3 (Suspension of Service and Acceleration) with respect
to an overdue amount for so long as Subscriber is disputing the overdue amount
in good faith. The parties shall cooperate diligently to resolve the dispute.

5. Refund or Payment upon Termination.

If Subscriber terminates the Agreement in accordance with Section 5.2
(Termination for Cause), Firekast will refund any prepaid fees covering the
remainder of the term of all Service Orders after the effective date of
termination. If the Agreement is terminated by Firekast in accordance with
Section 5.2 (Termination for Cause), Subscriber will pay any unpaid fees
covering the remainder of the term of all Service Orders. In no event will
termination relieve Subscriber of its obligation to pay any fees payable for
the period prior to the effective date of termination. If Subscriber
terminates without cause prior to the end of the then current term, Subscriber
shall be immediately liable for the balance of the fees for the remainder of
the term.

6. Taxes.

Fees for Services do not include any taxes, levies, duties, or similar
governmental assessments of any nature, including, for example, value-added,
sales, use, or withholding taxes assessable by any jurisdiction whatsoever
(collectively, “Taxes”). Subscriber is responsible for paying all Taxes
associated with its Service Orders. If Firekast is obligated by law to pay or
collect Taxes for which Subscriber is responsible, Firekast will invoice
Subscriber and Subscriber will pay that amount unless Subscriber can provide a
valid tax exemption certificate authorized by the appropriate taxing
authority. Subscriber will provide Firekast any information Firekast
reasonably requests to determine whether Firekast is obligated to collect
Taxes. Firekast is solely responsible for taxes assessable against its income,
property, and employees.

6. Confidentiality.

1. Confidential Information.

“Confidential Information” means all information disclosed by a party
(“Disclosing Party“) to the other party (“Receiving Party“), whether orally or
in writing, that is designated as confidential or, given the nature of the
information and the circumstances of disclosure, should be understood to be
confidential. Subscriber’s Confidential Information includes the Subscriber
Data; Firekast’s Confidential Information includes the Services; and
Confidential Information of each party includes but is not limited to the
terms and conditions of the Agreement and all Service Orders, including
pricing, business and marketing plans, technology and technical information,
product plans and designs, and business processes disclosed by each party in
connection with the Agreement. Confidential Information does not include
information that: (a) is at the time of disclosure, or later becomes,
generally known to the public through no fault of Receiving Party; (b) was
known to the Receiving Party with no obligation of confidentiality prior to
disclosure by Disclosing Party, as proven by records of Receiving Party; (c)
is disclosed to Receiving Party by a third party who did not directly or
indirectly obtain the information subject to any confidentiality obligation;
or (d) is at any time independently developed by Receiving Party without use
of Disclosing Party’s Confidential Information as proven by records of
Receiving Party.

2. Protection of Confidential

Information. Except as provided in Section 7.3 (Compelled Disclosure)
Receiving Party shall not disclose or otherwise make available any
Confidential Information of Disclosing Party to anyone except those of its
employees, directors, attorneys, agents and consultants who: (a) need to know
the Confidential Information in connection with the purpose of the Agreement
and (b) who have previously agreed to be bound by confidentiality obligations
no less stringent than those in the Agreement. Each party shall (x) safeguard
all Confidential Information of the other party with at least the same degree
of care (but no less than reasonable care) as it uses to safeguard its own
confidential information and (y) not use any Confidential Information of the
other party for any purpose outside the scope of the Agreement.

3. Compelled Disclosure.

If Receiving Party is compelled by law to disclose Confidential Information of
Disclosing Party, then to the extent legally permitted, Receiving Party shall
provide Disclosing Party with prior notice of the compelled disclosure and
reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes
to contest the compelled disclosure. Any compelled disclosure shall be limited
to the extent required, and shall be subject to confidentiality protections to
the extent practicable. If Receiving Party is compelled by law to disclose
Disclosing Party’s Confidential Information as part of a civil proceeding to
which Disclosing Party is a party, and Disclosing Party is not contesting the
disclosure, Disclosing Party will reimburse Receiving Party for its reasonable
cost of compiling and providing secure access to that Confidential

7. Licenses and Proprietary Rights.

1. Subscriber Data.

Subscriber grants Firekast a worldwide, nonexclusive, revocable, and limited
license to store, copy, transmit, and display Subscriber Data and to
interoperate with any Non-Firekast Services as necessary in order for Firekast
to provide the Services in accordance with the Agreement. Subject to this
limited license, Firekast acquires no right, title, or interest from
Subscriber under the Agreement in or to Subscriber Data.

2. Firekast Software.

Except solely with respect to open source software Firekast makes available
(“Open Source Software”), including language specific codes that enable easy
communication with Firekast Software (the “API Clients”), Firekast grants
Subscriber a limited non-exclusive, non-transferable, non-sublicensable
license to use Firekast Software solely in connection with the subscribed
Services in accordance with the Agreement. Open Source Software, including API
Clients, and Subscriber’s use of such Open Source Software is subject to and
governed by the applicable license accompanying, linked to or embedded in such
Open Source Software (each an “Open Source License”) and Firekast grants
Subscriber a license to use the Open Source Software to the full extent
permitted by the applicable Open Source License.

3. Feedback.

Subscriber grants to Firekast worldwide, perpetual, irrevocable, royalty-free
permission to use and incorporate into the Services any suggestion,
enhancement request, recommendation, correction, or other feedback provided by

Firekast hereby grants Subscriber a worldwide, perpetual, non-exclusive,
non-transferable, royalty-free license to use for its internal business
purposes anything developed by Firekast for Subscriber and delivered by
Firekast to Subscriber in connection with support services (“Deliverables“).
Subject to Subscriber’s ownership of its proprietary and Confidential
Information disclosed to Firekast under Section 7 (Confidentiality), Firekast
shall retain all ownership rights to the Deliverables. Deliverables that are
custom code written by Firekast to facilitate Subscriber’s use of the Services
that include any Subscriber Confidential Information shall remain subject to
the confidentiality obligations under Section 7 (Confidentiality) and
Subscriber shall retain all ownership rights to its Confidential Information.

5. Proprietary Rights.

The Services, Firekast Software and the Documentation are the proprietary
information of Firekast. Subject to the limited rights expressly granted in
the Agreement, Firekast and Firekast’s licensors reserve all right, title, and
interest in and to the Services, Firekast Software and the Documentation,
including all related intellectual property rights. No rights are granted to
Subscriber except as expressly set forth in the Agreement. No rights are
granted to Firekast except as expressly set forth in the Agreement.

8. Export Compliance.

The Services, Firekast Software and the Documentation may be subject to export
laws and regulations of the United States and other jurisdictions, and any use
or transfer of the Services, Firekast Software and Documentation must be
permitted under these laws and regulations. Each party represents that it is
not named on any U.S. government denied-party list. Subscriber shall not
enable use of the Services in a U.S.-embargoed country (currently Cuba, Iran,
North Korea, Sudan, Crimea – Region of Ukraine, or Syria) or in violation of
any U.S. export law or regulation.

9. Anti-corruption.

Subscriber has not received or been offered any bribe, kickback, illegal or
improper payment, gift, or thing of value from any Firekast personnel or
agents in connection with the Agreement, other than reasonable gifts and
entertainment provided in the ordinary course of business.

10. Warranties.

1. Services Warranty.

In addition to its obligations under Section 3 (Firekast’s Obligations),
Firekast warrants that during the term of each Service Order that: (a) the
Services will perform materially in accordance with the applicable
Documentation, (b) the Services will be provided in accordance with the
applicable service level agreement, available at
(each an “SLA”), (c) the overall effectiveness of the Security Measures will
not be decreased and (d) Firekast will not materially decrease the overall
functionality of the Services. SLAs do not apply (i) to unavailability of
Services caused by factors outside of Firekast’s reasonable control, including
those set forth in Section 15 (Force Majeure); (ii) to unavailability of the
Services that result from Non-Firekast Services, equipment and/or software of
third parties where such equipment and/or software is not within the control
of Firekast; (iii) to unavailability of the Services caused by abuse or misuse
of the Services (or any component thereof) by Subscriber or Subscriber’s
personnel or end users; (iv) to unavailability of the Services caused by use
or maintenance of the Services (or any component thereof) by Subscriber in a
manner not conforming to the requirements described in the Documentation or in
the Agreement; (v) to unavailability of the Services caused by modifications
to Firekast Software by Subscriber, its personnel or end users; (vi) to
unavailability of the Services due to reaching the maximum capacity of the
contracted infrastructure; or (vii) for any usage where Subscriber has not
used the latest version of API Clients. Without limiting Firekast’s
obligations pursuant to Section 2 (Firekast’s Obligations), Subscriber’s
exclusive remedies for a breach of a warranty in this Section 11.1 (Services
Warranty) shall be to exercise the express rights described in Sections 4.2
(Termination for Cause), 6.5 (Refund or Payment upon Termination) and claim
the credits set forth in the applicable SLA.

2. Support Services Warranty.

Support services specified in applicable Service Orders will be performed in a
professional and workmanlike manner, in accordance with generally accepted
industry standards. Subscriber’s exclusive remedies for breach of the warranty
in this Section 11.2 shall be either (a) re-performance of the support
Services by Firekast; (b) to claim the credits set forth in the applicable
SLA, if any; or (c) to exercise the express rights described in Sections 4.2
(Termination for Cause) and 6.5 (Refund or Payment upon Termination).

11. Disclaimers.


12. Manner of Giving Notice.

1. Updates.

All updates to the Documentation will be posted to All updates
to SLAs will be posted at All updates to the Documentation that reflect updates to API Clients will
also be posted in the Services’ user interface dashboard. Except as expressly
set forth in a Documentation, updates to the Documentation will be effective
upon posting. Updates to SLAs will be effective thirty (30) days after

2. Governing Law and Jurisdiction.

The Agreement shall be governed by and construed in accordance with the
controlling laws of (i) France, if Subscriber is domiciled in a country in
Europe, or (ii) the United States of America and the State of California, if
Subscriber is domiciled anywhere else, in each case excluding rules governing
conflict of law and choice of law. The courts in Paris, France shall have
exclusive jurisdiction to adjudicate any dispute arising out of the Agreement
if French law applies and the Federal and state courts within San Francisco
California shall have exclusive jurisdiction to adjudicate any dispute arising
out of the Agreement if United States and the State of California laws apply.
Each party hereto expressly consents to the personal jurisdiction of, and
venue in, such courts and service of process being effected upon it by
registered mail sent to the Legal Notice address provided by such party under
the Agreement. The parties agree that the UN Convention on Contracts for the
International Sale of Goods (Vienna, 1980) and the Uniform Computer
Information Transaction Act or similar federal or state laws or regulations
shall not apply to the Agreement nor to any dispute or transaction arising out
of the Agreement.

13. Publicity.

Subscriber consents to Firekast’s use of Subscriber’s name and logo and
general description of Subscriber’s relationship with Firekast in press
releases and other marketing materials and appearances. Subscriber further
permits Firekast to use it as a reference account for marketing purposes and
agrees, from time to time, to support Firekast by participating in reference
phone call(s) and other marketing events including with press, analysts, and
Firekast’s existing or potential investors or customers upon reasonable
request by Firekast.

14. Force Majeure.

Except for payment obligations under the Agreement, neither party will be
liable for failure to perform or inadequate performance to the extent caused
by a condition that was beyond the party’s reasonable control, including, for
example, an act of God, natural disaster, act of war or terrorism, riot or
civil arrest, labor conditions, governmental action, disruption of
telecommunications, failure or delay of internet services providers or
internet disturbance, disruption of power or other essential services.

15. Equitable Relief.

The parties agree that a material breach of the Agreement adversely affecting
Firekast intellectual property rights in Firekast Software may cause
irreparable injury to Firekast and/or its licensors for which monetary damages
would not be an adequate remedy and Firekast shall be entitled to equitable
relief (without a requirement to post a bond) in addition to any remedies it
may have hereunder or at law.

16. Relationship of the Parties.

The parties are independent contractors. The Agreement does not create a
partnership, franchise, joint venture, agency, fiduciary, or employment
relationship between the parties.

17. Entire Agreement.

The Agreement supersedes all prior and contemporaneous agreements, proposals,
or representations, written or oral, concerning its subject matter. Firekast
and Subscriber each represent that it has validly entered into or accepted the
Agreement and has the legal power to do so. Firekast may modify these Terms
from time to time. Any and all changes to these Terms will be posted at and the Terms will indicate the date they were
last updated and their effective date. The changes will become effective
thirty (30) days after posting and Subscriber may terminate the Agreement
without penalty upon notice to Firekast within ten (10) days of the effective
date of the revised Terms. Subscriber is deemed to accept and agree to be
bound by any changes to the Agreement when Subscriber uses the Service after
the effective date of those changes. Notwithstanding the foregoing, in the
event that the parties enter into, or have entered into a separate formal
written subscript agreement, the terms of that agreement shall control over
the terms of the Agreement unless the parties expressly agree to supersede
such agreement with this Agreement. Any term or condition stated in a
Subscriber purchase order or other Subscriber order documents (excluding
Service Orders) is void. No failure or delay by either party in exercising any
right under the Agreement will constitute a waiver of that right. If any
provision of the Agreement is held by a court of competent jurisdiction to be
contrary to law, the provision will be deemed null and void, and the remaining
provisions of the Agreement will remain in effect. All reference in the
Agreement to “including” means “including but not limited to”.