Firecracker Terms of Service

Last updated August 21, 2018

Thank you for using Firecracker! These Terms of Service (the “Terms”) govern your access to and use of Firecracker (“we”, “us” or “our”) website and services (the “Services”).

By using the Services, you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these terms. In that case, “you” and “your” will refer to that organization.

You may use the Services only in compliance with these Terms. You may use the Services only if you have the power to form a contract with us and are not barred under any applicable laws from doing so. The Services may continue to change over time as we refine and add more features. We may stop, suspend, or modify the Services at any time without prior notice to you. We may also remove any content from our Services at our discretion.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND WE ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS, UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE AS DESCRIBED IN THE ARBITRATION SECTION (SEE “GOVERNING LAW; AGREEMENT TO ARBITRATE”).

Privacy Policy

Please review our privacy policy, available at http://www.firecracker.me/privacy, (“Privacy Policy”) which describes how we handle any personally identifying information collected from users of our Services.

If you are a student receiving our Services through an agreement between us and an educational institution that you attend, you consent to us sharing information with such educational institution, including information regarding your usage of the Services, your performance on tests of your abilities using the Services, or any other information that we choose to share with such educational institution.

Copyright & Content

Copyright on our website and all materials included in it is owned by or licensed to us and all rights are reserved. You must abide by all copyright notices and restrictions contained on our website. You may not copy, distribute, enter into a database, display, perform, create derivative works of, transmit, or otherwise use any materials from this website (including computer programs or other code) (“Website Materials”), unless we have specifically authorized you to do so and then only for personal, non-commercial use, and only if you do not alter the text or remove any trademark, copyright, or other notice displayed on the Website Materials.

If you submit any content to us (“Submitted Content”), you agree to assign and hereby assign any such content to us. To the extent that you are not permitted to assign any such Submitted Content, you hereby grant to us and our affiliates a non-exclusive, fully-paid, irrevocable, royalty-free, transferable, sublicensable, perpetual, worldwide license to reproduce, distribute, prepare derivative works of, modify, adapt, translate, publicly perform, publicly display, digitally perform or otherwise use any such Submitted Content for any purpose and in any manner, including in combination with other content. You understand that we may use any such Submitted Content for any purpose. You represent and warrant to us that you will not submit Submitted Content that you do not have the right to submit.

You shall not use this website to:

1. submit any Submitted Content or transmit via or through the website any information, data, text, images, files, links, software, chat, communication or other content that is, or which we consider in our sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, or otherwise objectionable, including without limitation blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, excessively violent, harassing or otherwise objectionable content;
2. sell or promote any products or services that are unlawful in the location at which the Submitted Content is posted or received;
3. sell or promote controlled pharmaceutical substances, tobacco, firearms or alcoholic beverages;
4. introduce viruses, worms, Trojan horses and/or harmful code on the Internet;
5. display material that exploits children under 18 years of age;
6. submit any Submitted Content or otherwise infringe in any way or violate any copyright, patent, trademark, service mark, trade name, trade secret or other intellectual property right of any third party;
7. promote, solicit or participate in multi-level marketing or pyramid schemes;
8. harass, embarrass or cause distress or discomfort upon another participant, user, or other individual or entity;
9. impersonate any other person, including without limitation a customer, supplier, official of our company, expert or bulletin board leader, guide or host;
10. post or disclose any personally identifying information or private information about children or any third parties without their consent (or their parent’s consent in case of a child under 18 years of age);
11. post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation on our bulletin boards, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests;
12. intentionally or unintentionally violate any applicable local, state, national or international law, including without limitation any regulations having the force of law while using or accessing the website or in connection with your use of the website, in any manner; or
13. invade the privacy or violate any personal or proprietary right (including intellectual property rights) of any person or entity.

We reserve the right, without prior notice and in its sole discretion, to decide whether Submitted Content violates these Terms for any of the above reasons or for any other reason, and if we do so, to remove such Submitted Content which you post to the website and/or terminate your access to any of our Services.

Notice and Take Down Procedures; Copyright Agent

If you believe any materials accessible on or from this website infringe your copyright, you may request removal of those materials (or access thereto) from this website by contacting Firecracker’s copyright agent (identified below) and providing the following information:

1. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
2. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
3. Your name, address, telephone number and (if available) email address.
4. A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent or the law.
5. A statement that the information that you have supplied is accurate, and indicating that under penalty of perjury, you are the copyright owner or are authorized to act on the copyright owner’s behalf.
6. A signature or the electronic equivalent from the copyright holder or authorized representative.

Our agent for copyright issues relating to this Website is as follows:

Copyright Agent
Firecracker Inc.
25 West St
Floor 4
Boston, MA 02111
Email: [email protected]

In an effort to protect the rights of copyright owners, Firecracker maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this Website who are repeat infringers.

Trademarks

Firecracker, the Firecracker Logo, and other logos on our Services are trademarks owned by Firecracker Inc. (“Firecracker Trademarks”). You may not use Firecracker Trademarks in connection with any product or service that does not belong to us, or in any manner that is likely to cause confusion among users about whether we are the source, sponsor, or endorser of the product or service, or in any manner that disparages or discredits us.

Links, Frames, and Metatags

You may link to the home page of our website as long as the link does not cast us in a false or misleading light. You may not frame the content of our website. You may not use metatags or any other “hidden text” that incorporates our Trademarks or our name without our express written consent.

Links to Other Websites

This website may contain links to other websites, including websites for other Firecracker Inc. products or divisions. These Terms and our Privacy Policy do not apply to these other websites. Be sure to read the Terms of Service and Privacy Policies of these other websites as these agreements govern your use of these other websites. Any links to other websites should not be construed as any endorsement or recommendation of such other websites by Firecracker.

Disclaimer; Limitation of Liability; Indemnity

THIS WEBSITE AND THE INFORMATION, CONTENTS, GRAPHICS, DOCUMENTS AND OTHER ELEMENTS INCLUDED HEREIN (COLLECTIVELY THE “CONTENTS”) ARE PROVIDED ON AN “AS IS” BASIS WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND. FIRECRACKER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE WEBSITE CONTENTS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NEITHER WE NOR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES OR OTHER AUTHORIZED REPRESENTATIVES SHALL BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS WEBSITE, THE SERVICES OR THE INFORMATION OR CONTENTS AVAILABLE FROM THIS WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION RESULTING FROM YOUR USE OF OUR WEBSITE OR SERVICES, WHETHER IN WARRANTY, CONTRACT, TORT, OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE GREATER OF (A) AMOUNTS PAID BY YOU TO US IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM; OR (B) ONE U.S. DOLLAR (US$1). THIS LIMITATION IS CUMULATIVE AND NOT PER CLAIM.

THE CONTENTS OF THIS WEBSITE COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE CONTENTS OF THIS WEBSITE. FIRECRACKER MAY MAKE IMPROVEMENTS, DELETIONS, CHANGES OR OTHER MODIFICATIONS TO THIS WEBSITE, THE CONTENTS HEREOF, AND THE PRODUCTS AND SOFTWARE DESCRIBED HEREIN AT ANY TIME WITHOUT NOTICE.

THIS WEBSITE, THE SERVICES AND THE CONTENTS ARE FOR INFORMATIONAL PURPOSES ONLY. THE DATA AND OTHER INFORMATION IN THE MEDICAL FIELD CHANGE FREQUENTLY AND ARE SUBJECT TO DIFFERING INTERPRETATIONS. IN ADDITION, THE FACTS AND CIRCUMSTANCES OF EVERY SITUATION DIFFER. ACCORDINGLY, ALTHOUGH WE ENDEAVOR TO USE REASONABLE CARE IN ASSEMBLING THE CONTENTS, YOU SHOULD BE AWARE THAT WE HAVE NO OBLIGATION TO UPDATE SUCH CONTENTS AND THAT SUCH CONTENTS MAY CONTAIN ERRORS, OMISSIONS, INACCURACIES OR OUTDATED INFORMATION. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE COMPLETENESS, ACCURACY, ADEQUACY, CURRENCY OR RELIABILITY OF ANY INFORMATION AND ASSUME, AND SHALL HAVE, NO LIABILITY OF ANY KIND RELATING TO THE INFORMATION. THE CONTENTS ARE PROVIDED WITH THE UNDERSTANDING THAT WE ARE NOT ENGAGED IN RENDERING LEGAL, MEDICAL, COUNSELING OR OTHER PROFESSIONAL SERVICES OR ADVICE.

You agree to indemnify, defend and hold harmless us, our affiliates, officers, directors, employees, consultants, agents, representatives, licensors, and suppliers, from any and all claims, losses, liability, damages and/or costs (including reasonable attorneys’ fees and costs) arising out of or relating to your violation of these Terms, including without limitation any representations and warranties hereunder and any agreements incorporated by reference; and/or (2) your infringement of any intellectual property or other right of any person or entity.

Governing Law & Agreement to Arbitrate

These Terms will be governed by the laws of the Commonwealth of Massachusetts applicable to contracts made and performed therein, without regard to its conflicts of law principles. Unless you and we agree otherwise, in the event that the following paragraph is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Arbitration Procedures (as defined below) or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Suffolk County, Massachusetts, except that you or we are permitted (1) to bring small claims actions in state court in the county in which you reside if such court has a small claims procedure; (2) to bring claims for injunctive relief in any court having jurisdiction over the parties; or (3) to seek enforcement of a judgment in any court having jurisdiction over the parties. Except for the foregoing exceptions, you and we agree to submit to the personal jurisdiction of the courts located within Suffolk County, Massachusetts for the purpose of litigating all such claims or disputes. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding.

Except if you opt-out or for disputes relating to your or our intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents) or for items (1)-(3) set forth in the paragraph above, you agree that all disputes between you and us (whether or not such dispute involves a third party) arising out of or relating to these Terms, Firecracker, and/or our Privacy Policy shall be finally resolved by arbitration (“Agreement to Arbitrate”) before a single arbitrator conducted in the English language in Suffolk County, Massachusetts, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (AAA) and you and we hereby expressly waive trial by jury. You and we shall appoint as sole arbitrator a person mutually agreed by you and us or, if you and we cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms. The procedures set forth in this paragraph are the “Arbitration Procedures”.

Any claims brought by you or us must be brought in that parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither you nor us will participate in a class action or class-wide arbitration for any claims covered by these Terms. You hereby waive any and all rights to bring any claims related to these Terms and/or our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on your own behalf.

You may opt out of this Agreement To Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt-out notice must state that you do not agree to the Agreement To Arbitrate and must include your name, address, phone number, your Firecracker account to which the opt-out applies and a clear statement that you want to opt out of this Agreement To Arbitrate. You must sign the opt-out notice for it to be effective. This procedure is the only way you can opt out of the Agreement To Arbitrate.

You must use this address to opt out:

Firecracker, Inc. ATTN: Arbitration Opt-Out
25 West St
Floor 4
Boston, MA 02111

Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to the Arbitration Procedures (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate the Arbitration Procedures from these Terms, such termination shall not be effective until thirty (30) days after the version of these Terms not containing the Arbitration Procedures is posted to our website, and shall not be effective as to any claim that was filed in a legal proceeding against us prior to the effective date of removal.

Miscellaneous

Our Services are only suitable for use for adults located in the United States of America. If you are under the age of 18, you may only use our Services under the supervision and in conjunction with an adult, who is responsible for your use of the Services. If you are located outside of the United States of America, you consent to your information being sent to the United States of America.

These Terms are the entire agreement between you and us relating to the subject matter hereof and may not be modified except in a writing signed by both you and us.

You may not assign these Terms. Any purported assignment by you is null and void.

If any part of these Terms are held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.

Review and Correction; Questions

If you are a registered member of the Firecracker Website, you may review and update your personal data by clicking the “My Account” link on your personal login page. If you have any questions about our treatment of your data, or if you wish to update your personal data, you can send an email to [email protected].

Payment Terms & Conditions

For your convenience, when you subscribe to our Services, we will save your credit or debit card information and regularly charge you for your monthly subscription. If any fee is not paid in a timely manner, or we are unable to process your transaction using the payment information provided, we reserve the right to revoke access to your account with us and Services. If you do not bring your Firecracker balance current within five (5) days after we provide you with notification that your account is in arrears, we reserve the right to restrict your account.

Your account will continue in effect unless and until you cancel or we terminate it. Your account is prepaid and non-refundable. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL MONTHS OR YEARS. You may cancel your account at any time, and cancellation will be effective immediately. If you wish to cancel your account you may do so via your “Account” page. Should you elect to cancel your Account, please note that you will not be issued a refund for the most recently (or any previously) charged fees.

We use a third party payment service to process your credit card or other payment information. By submitting your credit card or other payment information, you agree that we will not be responsible for any failures of the third party to adequately protect such information. All financial matters regarding your information are subject to the conditions of the third party payment service provider’s terms of service. You acknowledge that we may change the third party payment service from whom we accept payment. We will select third parties who encrypt your information using secure socket layer technology (SSL) or other comparable security technology.

Termination

We reserve the right to suspend our Services or terminate these Terms at any time without notice for any reason, including, in the case of the Terms, for your violation of any of its provisions. The following sections of these Terms shall survive any such termination: Copyright & Content, Trademarks, Disclaimer; Limitation of Liability; Indemnity, Governing Law & Agreement to Arbitrate, Miscellaneous, Termination. We specifically reserve the right to suspend or terminate, without refund, your account for suspected abuse of our website or its Contents. This includes behavior that would be consistent with copying and pasting content into external applications.

Digital Millennium Copyright Act (DMCA) Notice

Materials on this Online Service may be from third parties not within Wolters Kluwer’s control. Wolters Kluwer is under no obligation to, and does not, scan content used in connection with the Online Service for the inclusion of illegal or impermissible content. However, Wolters Kluwer respects the copyright interests of others and, as a policy, does not knowingly permit materials herein that infringe another party’s copyright. If you believe any materials on this Online Service infringe a copyright, you should provide us with written notice that at a minimum contains:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

All DMCA notices should be sent to our designated agent as follows:

Law Department
Wolters Kluwer
2700 Lake Cook Rd
Riverwoods, IL 60015
Tel: 1-847-580-5045
Email: [email protected]

Wolters Kluwer may, in appropriate circumstances and at its discretion, terminate the account or access of users who infringe the intellectual property rights of others.

Last updated August 21, 2018

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’s purchase 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.

“Privacy Policy” means the Firecracker privacy policy for the Service, as may be updated by Firecracker from time to time, as posted at firecracker. me/privacy or such other URL as Firecracker may determine from time to time.

“Registered Student” means a Student (i) for whom Institution has purchased a Service Subscription and provided Firecracker with a Student Email Address in accordance with this Agreement and (ii) who has agreed to the Terms of Service and Privacy Policy.

“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.

2.3 Enablement of Access. Subject to the terms and conditions of this Agreement: (a) for each Institution Permitted User for whom Institution provides Firecracker with an Institution email address, Firecracker will enable such Institution Permitted User’s access to each applicable Institution Application and the Service within thirty (30) days following the execution of the applicable Order by the Parties; and (b) for each Student for whom Institution provides Firecracker with a Student Email Address, Firecracker will enable such Student’s access to the Service on the first day of the calendar month following the month in which it receives such Student’s Student Email Address from Institution, provided that Institution may only provide Firecracker with Student Email Addresses once per calendar month, not later than the last business day of such month. Institution acknowledges and agrees that each Student will have to agree to the Terms of Service and Privacy Policy before being allowed to access or use the Service. Any Student who does not agree to the Terms of Service and Privacy Policy will not be allowed to access, use or benefit from the Service. Institution further acknowledges and agrees that each Institution Permitted User may be required to agree to the Terms of Service and Privacy Policy (or their equivalents established by Firecracker specifically for use of the Service by educational institutions pursuant to Section 2.2 above) before being allowed to access or use the Service pursuant to Section 2.2; the Parties agree that in such case, in the event of a conflict between the Terms of Service or the Privacy Policy (as they relate to use of the Service by Institution and the Institution Permitted Users) and this terms of this Agreement, the terms of this Agreement shall control.

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. Indemnification.

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. ATTN: CFO
25 West St
Floor 4
Boston, MA 02111

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.

10. Digital Millennium Copyright Act (DMCA) Notice

Materials on this Online Service may be from third parties not within Wolters Kluwer’s control. Wolters Kluwer is under no obligation to, and does not, scan content used in connection with the Online Service for the inclusion of illegal or impermissible content. However, Wolters Kluwer respects the copyright interests of others and, as a policy, does not knowingly permit materials herein that infringe another party’s copyright. If you believe any materials on this Online Service infringe a copyright, you should provide us with written notice that at a minimum contains:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

All DMCA notices should be sent to our designated agent as follows:

Law Department
Wolters Kluwer
2700 Lake Cook Rd
Riverwoods, IL 60015
Tel: 1-847-580-5045
Email: [email protected]

Wolters Kluwer may, in appropriate circumstances and at its discretion, terminate the account or access of users who infringe the intellectual property rights of others.