Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) governs your acquisition and use, whether fee-based or free trial, of MindFire Internet Solutions, Inc.’s (“we,” “our”, “us” or “MindFire”) services, portals, and/or applications.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR SUBMITTING YOUR CREDIT CARD/PAYMENT INFORMATION TO US, YOU AGREE TO THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE, THE TERMS “YOU”, “YOUR” OR “YOURS” (IN ANY FORM OR FORMAT) SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DON’T AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE APPLICABLE SERVICES.

This Agreement is effective as of the date of your acceptance.  We reserve the right to update the terms of this Agreement.  Any such updates will be posted on our website and informed to you electronically or through messages in MindFire’s application.  You have the right to object to any updated terms and thereby opt-out of this Agreement subject to written notice to us as to such.

You may not access any of our products or services, except with our prior written consent: (i) if you are MindFire’s direct competitor; and/or (ii) for purposes of monitoring its availability, performance, functionality, or for any other benchmarking or competitive purposes.

This agreement was last updated on December 1, 2021. It is effective between You and Us as of the date of you accepting this Agreement.

1. Scope of Service.

1. Subject to the limitations of this Agreement, you shall have limited access to those MindFire products and services you have selected during the effective term (collectively, the “Service(s)”).
2. You shall be solely responsible for any third-party agent or client either invited or authorized by you to use the Service.
3. Services may be subject to other conditions, such as, for example, limits on storage space, the number of permitted calls using our application programming interface, and, for Services that enable you to provide public microsites, the number of page views by visitors to those microsites. 
4. If you register on our website for a free trial, we will make certain Services available to you on a trial basis free of charge until the earlier of: (i) the end of the free trial period; or (ii) the start date of any Service you purchase.  Use of any free trials may be subject to additional terms and conditions.
5. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATION MADE TO THE SERVICES DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.  YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THE FREE TRIAL PRODUCT.  THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
6. WITHOUT LIMITING THE TERMS OF SECTION 5 (LIMITED WARRANTY; LIMITATION OF LIABILITY), BELOW, DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY, EITHER EXPRESS OR IMPLIED.
7. MindFire grants you limited and non-exclusive access to any data that is purchased, obtained, derived or in any manner enriched through use of the Data Enrichment or Data Purchasing Services built into MindFire’s software.  MindFire may, however, share the data with other MindFire customers, should they execute a query that includes the same data in the result.

2. Fees.

1. You shall timely pay all applicable fees incurred as to your use of the Services.  Unless otherwise indicated: (i) fees are based on the Services purchased and not your actual usage; and (ii) payment obligations are non-cancelable and fees paid are non-refundable.  Service subscription fees are based on annual, quarterly or monthly periods as specified and commence as of the subscription start date and each annual, quarterly, or monthly anniversary thereafter; provided, however, that fees shall be prorated for partial periods.
2. You must provide us with valid and updated credit card information or alternative payment method acceptable to us and thereby authorize us to charge such payment method(s) for all Services as to the initial and any renewal subscription terms.  Such charges shall be made in advance, either annually or in accordance with any alternative billing frequency stated in the applicable order.  If the order specifies a payment method other than credit card, we will invoice you in advance.  Unless otherwise stated in the order, invoiced charges are due net 30 days from the invoice date.  You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to such information.
3. You shall pay, on all amounts past due, an interest charge of one and one-half percent (1.5%) per month (or the maximum rate permitted by California law) computed from the due date of each payment.  You shall also be liable for all court, arbitration and/or related collection expenses.
4. You agree to pay all applicable state and local sales, use, property, or other related taxes (collectively, “Chargeable Taxes”).  We reserve the right to include Chargeable Taxes in our invoices.
5. If you request reactivation due to previous deactivation resulting from non-payment or any other reason, a $500.00 reactivation fee will be assessed.

3. Limitations on Use of Service and Software.

1. As used herein, “Software” refers to any software, intellectual property, service and/or trademarks incorporated into or used by the Service.  You shall not, and will not permit, assist, or allow others to, reverse engineer, decompile, decode, disassemble, re-engineer, or otherwise discover, recreate, or attempt to discover or recreate the Software or its source code.  You shall not, either directly or indirectly, manipulate, modify and/or alter the Software.  However, and although you are prohibited from reselling or redistributing any Software and/or Service unless expressly and in writing permitted by us otherwise, you are granted the limited right to charge others to use or access the Software or the Service.  You shall not use the Software or the Service in any manner or for any purpose not otherwise expressly authorized by this Agreement.
2. You shall not use the Service as a data storage, archiving and/or back-up platform.  Further, you agree to use the Service only for the intended purpose of facilitating its designated media campaign(s).
3. In the event you share with us any third-party personal or confidential information, you shall obtain the appropriate advance written permission from such third-parties.  Similarly, you are solely responsible to secure the appropriate rights as to any data you enter into the Software or the Service and you shall only use the Software or the Service subject to the consent or approval received.  Without limiting the foregoing, you shall include the following in your terms of use policy with your end-users:

“You agree to us using and sharing your personal information for direct marketing purposes with our third-party vendor, MindFire Internet Solutions, Inc.  You can find MindFire, Inc.’s privacy policy at http://www.mindfireinc.com/privacy/.”

4. You are responsible for monitoring the status and performance of an individual campaign using the Software or Service, and that all such aspects are functioning appropriately.  We may provide customization and flexibility tools enabling you to turn on or off features or the entire Software or Service.  While we generally monitor the Software and Service frameworks as to functionality and also undertake commercially reasonable efforts to provide uninterrupted Service, we do not monitor the availability or performance of your individual resources unless otherwise agreed to in writing and subject to additional fees.
5. If you engage in a campaign exceeding 10,000 visits per hour, you must provide us written notice at least 48 hours in advance of such triggering event.  Additional charges may apply depending on the scope and nature of the campaign and expected volume.
6. The Social Selling Assistant works only with the information that is normally available to you when you are logged into LinkedIn, and will not otherwise organically locate LinkedIn profiles or other data. If you use MindFire’s Social Selling Assistant, whether by a paid or free trial version, you agree: (i) to log directly into your own LinkedIn account; and (ii) in addition to our policies and terms of use, to strictly comply with LinkedIn’s use policies, including, without limitation, its user agreement at  https://www.linkedin.com/legal/user-agreement.
7. If you use the Social Selling Assistant, Data Enrichment Service or Data Purchasing Service made available by MindFire through the use of the Software of Services, and except as expressly permitted otherwise, you shall not permit any third-party to: (i) print, download, export, or make copies of Your Data (as defined below) that is made available to you through the Services; or (ii) use the Services or Your Data, in whole or in part, for any activities prohibited by this Agreement.

4. Security, Privacy, and Access.

1. MindFire will exercise reasonable care to prevent any unauthorized person or entity from gaining access to data you utilized in conjunction with the Service (“Your Data”).  Each of us must promptly notify the other of any unauthorized access to or use of Your Data or passwords and undertake reasonable efforts to take remedial measures to address any such unauthorized access.  MindFire shall not be liable for any damages incurred by you or your authorized users arising out of or related to use of the Service, including, without limitation, in connection with any unauthorized access to or disclosure of Your Data, resulting from your actions, any third-party, or from the failure of electronic or other security measures.
2. You shall not disclose any login credentials and/or account passwords to any third-party not otherwise authorized to use the Service.
3. You grant MindFire the perpetual, royalty free and worldwide license and right to display your company or entity name, as well as associated logos, on its customer list, which is used for MindFire marketing purposes (brochures, websites, etc.).  However, you may request removal from this list at any time by written request.
4. You agree to be bound by and to require that any third-party to whom you provide or with whom you share information, to adhere to the requirements of all applicable laws and the terms of this Agreement.
5. MindFire may monitor your use of the Services and use Your Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Your Data and/or identify your confidential information.  We retain all intellectual property rights in such information.  Additionally, we may also review or analyze personal information related to an individual or a list of individuals that you provide when assisting you for the purposes of troubleshooting and providing customer-support services.
6. MindFire retains the right to use third-party vendors to fulfill its obligations.
7. We use information you provide for such purposes as responding to your requests, improving our Services and communicating with you.  You are responsible for compliance with any applicable laws involved in sharing any data with us.
8. MindFire tracks different categories of information on your behalf, including for example: (i) internal related data for authentication and individual preference attributes; (ii) historical usage patterns; (iii) external data related to behavioral, ethnicity, demographic characteristics of individuals; (iv) social related data for communication purposes; and (v) usage of computing devices used to track (i.e., IP address, mac address, browser fingerprint, etc.).  Our usage of such information, however, is limited to statistical level analysis without using any identifiable information to an individual or group of individuals.
9. MindFire undertakes commercially reasonable efforts to ensure that its systems, services and any underlying infrastructure are technically and organizationally sound, secure and access to sensitive personal identifiable information at an individual level is permitted only on a need-to-know basis for a legitimate purpose to provide its Services.  Unless specifically requested by you for troubleshooting, maintenance, optimization, system improvement or performance, no individual from MindFire including any of its corporate representatives, employees, affiliates or agents reviews or analyzes the data collected. 
10. MindFire does not resell or share with any other third-party, any of the information that is retrieved from LinkedIn using the Social Selling Assistant on your behalf and/or any other similar data you provide to us.

5. Limited Warranty; Limitation of Liability.

MINDFIRE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE. UNDER NO CIRCUMSTANCE, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND/OR BREACH OF CONTRACT, WILL MINDFIRE BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE USE OR INABILITY TO USE THE SERVICE.

IN NO EVENT WILL MINDFIRE’S TOTAL LIABILITY FOR DAMAGES, LOSSES, OR CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, EITHER JOINTLY OR SEVERALLY, EXCEED AN AMOUNT THAT IS LESSER OF THE DOLLAR AMOUNT PAID BY YOU TO MINDFIRE FOR THE INITIAL LICENSE, OR THE AMOUNT YOU PAID IN THE TWO (2) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE

THIS LIMITATION OF LIABILITY IS PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND MINDFIRE AND SHALL APPLY TO ALL CLAIMS OF LIABILITY (E.G., WARRANTY, TORT, NEGLIGENCE, CONTRACT, LAW) AND EVEN IF MINDFIRE OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE OR SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.

The remedies provided in this provision allocate the risks under this Agreement, some of which may be unknown or undeterminable. Such limitations serve as a material inducement for us to enter into this Agreement and you acknowledge that we have relied upon these limitations in determining whether to enter into this Agreement.

1. MindFire is not liable for the: (i) accuracy, truthfulness, or validity of any data entered by you or provided through the Service; or (ii) loss, destruction or compromise of any of Your Data.
2. MindFire may use third-party providers to provide and/or facilitate its Data Enrichment and/or Data Purchasing Services. While MindFire undertakes commercially reasonable efforts to ensure accuracy of the data, we do not guarantee the accuracy of such information. Should you come across any such material inaccuracy, you agree to inform MindFire by opening a support case and provide MindFire an opportunity to work with its third-party provider to correct and/or update the information.
3. MINDFIRE SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF, OR RELATED TO INTERRUPTION OF, OR DEFECTS IN, TRANSMISSION OF THE SERVICE, including, without limitation, interruptions or defects due to inability to access the Internet or any part thereof, equipment modifications, upgrades, relocations, or repairs. No reduction of fees will be made in the case of temporary interruption of or defects in the transmission of the Service.
4. MindFire shall not be liable for interruption of or delays in transmission or termination/cancelation of the Service caused by acts of God, pandemics, fire, water, riots, acts of Government, national emergency, acts or omissions of Internet backbone providers, or any other causes beyond MindFire’s direct control.
5. Your sole and exclusive remedy, if you are dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of MindFire is to discontinue using the Service and advise MindFire accordingly.

6. Indemnification.

1. You shall indemnify, defend and hold harmless MindFire and its affiliates, employees, officers, directors, agents, licensors, third-party vendors, service providers, successors and assigns from all damages and liability, including without limitation, reasonable attorneys’ fees and costs incurred, either directly or indirectly, due to: (i) your breach of this Agreement; (ii) your negligent or willful acts as well as those of your end-users;(iii) the violation by you or your end users as to any privacy rights, property rights, trade secrets, proprietary information, trademarks, service marks, copyrights, mailing list usage rights, patent rights, as well as resulting claims for libel, slander, or unfair trade practices arising from use of the Service; or (iv) violation of any laws, including, absent limitation, those regulations controlling use of any form of electronic communications.

7. Term; Termination; Cessation/Suspension of Service.

1. This Agreement commences on the date you accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. If you elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
2. Subscriptions you purchase commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal. Any such pricing increase shall not exceed 10% of the pricing of the relevant services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
3. Either party may terminate this Agreement for cause: (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Further, MindFire may terminate this Agreement for cause, but absent any cure opportunity, if all or part of the Services are no longer available or become legally prohibited for any reason.
4. Upon your termination for cause, we shall refund you any prepaid fees covering the remainder of the term of the applicable subscription as of the effective termination date. Upon any termination for cause by us, you shall immediately pay, in advance, any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees for the period prior to the effective date of termination.
5. Upon your request within 30 days after the effective date of termination, we will make available to you for download a file of Your Data in a comma separated value (.csv) format along its native format. After such 30-day period, we shall have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of such data in our possession or under control.
6. The following obligations will survive the termination or expiration of the Agreement for any reason: (i) indemnification obligations set forth in Section 6(1), above; (ii) fee obligations set forth in Section 2, above; and (iii) any other provision hereof where the context of such provision indicates an intent that it is to survive the termination or expiration of this Agreement.
7. MindFire may deny or suspend your access to all or part of the Service without prior notice if we believe that you have violated any term of this Agreement.

8. Acceptable Use Policy.

You must strictly comply with all laws as well as MindFire’s Electronic Communications Acceptable Use Policy made available through MindFire’s website at https://mindfireinc.com/wp-content/uploads/2021/10/126_EMail-and-SMS-Acceptable-Use-Policy.pdf.

9. Miscellaneous.

1. This Agreement constitutes the complete and exclusive understanding between the parties relating to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements and communications, whether written or oral, relating thereto.
2. This Agreement may not be amended, altered, or changed except by a separate signature acknowledging those changes signed by the duly authorized representatives of both parties.
3. In the event that any provision of this Agreement is held to be unenforceable, such provision will be construed as nearly as possible to reflect its original intent and the remainder of this Agreement will remain in full force and effect.
4. Your rights in this Agreement are personal and not otherwise assignable and/or transferrable. However, MindFire may fully or partially assign or transfer its rights and/or obligations under this Agreement.
5. This Agreement shall be governed in all respects by the laws of the State of California without regard to its conflict of laws provisions. Subject to the arbitration provision herein, should any action be commenced as relating to this Agreement and/or the transaction(s) intended by this Agreement, the state and federal courts in and for Orange County, California, shall have exclusive venue and jurisdiction of any dispute arising from this Agreement, and the parties hereby irrevocably submit to exclusive personal/subject matter jurisdiction in such courts. The foregoing, however, shall not limit the right of any party to serve process in any other jurisdiction or to commence any legal action/proceeding in any other jurisdiction in order to obtain execution and/or enforcement of judgment or arbitration award in such other jurisdiction.
6. Any conflict resulting from this Agreement shall be resolved by binding arbitration administered through the American Arbitration Association and conducted by a single arbitrator to be mutually selected by the parties. If the parties cannot agree to the arbitrator, one shall be appointed as provided for under the then existing Rules of the American Arbitration Association. Any arbitration proceeding shall be conducted by a single arbitrator according to the Commercial Rules of the American Arbitration Association. The arbitration forum shall be Orange County, California. The parties expressly waive their right to a jury trial. The prevailing party shall be entitled to recovery of its costs. However, each side shall bear its own attorneys’ fees. Further, the arbitrator shall have the power to enter any award, order or judgment for damages as well as issuing injunctive relief and such award shall be binding with no right of appeal.
7. YOU AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
8. The remedies provided in this Agreement and at law or in equity are cumulative and not exclusive. The failure by either party to exercise any right or remedy under this Agreement or otherwise available at law or in equity will not be deemed a waiver of any subsequent right or remedy.
9. No person or entity who is not a party to this Agreement will derive any rights whatsoever hereunder as a third-party beneficiary.
10. The parties agree to take all further actions, including the execution of documents, which are reasonably necessary to effectuate the transaction(s) contemplated by this Agreement.
11. Any electronically accepted or signed copy of this Agreement, whether copied, reproduced and/or transmitted via photocopy, electronic copy, facsimile or another process that accurately transmits the original document shall be considered an original document.