FireWorks Technologies Master Services Agreement (MSA)

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This Master Services Agreement (hereinafter referred to as the “Agreement”) is entered by and between FireWorks Technologies, Inc., d/b/a MemberWorks (hereinafter referred to as the  “Company”), and the customer identified in the applicable Order Form (hereinafter referred to as the. “Customer”). The Company and the Customer are jointly referred to as the “Parties,” and individually as the “Party.” The Customer wishes to obtain access to the services (defined below) from the Company, which the Company agrees to provide as per the terms of this Agreement.

 TERMS OF THE AGREEMENT.

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1. SERVICES.

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1. Description of Services. Company agrees to provide the services to Customer identified in the Order Form (hereinafter referred to as  “Services”) and also provide for the maintenance and support. Company will use commercially reasonable efforts to make the Services available to Customer and any applicable Customer User (defined below) at all times in accordance with the terms of this Agreement.

2. License for Selected Services. Subject to the terms of this Agreement, Company grants Customer a non-exclusive, non-transferable right to access and use the Services on the Company’s proprietary software, systems and related technology (“Platform”) during the Term (defined below”) solely for internal business purposes.

3. Support. Company will support the Customer’s use of the Platform, including providing:

   1. Training for Customer’s personnel and Authorized Users (defined below);

   2. Migration services from Customer’s current technology providers replaced by the Platform;

   3. Utilization monitoring as to make usability enhancements; and

   4. Monitoring and troubleshooting to ensure the system is available and usable to Customer and its authorized users in accordance with the Service Level and Support Agreement (SLSA).

4. Service Specifications and Documentation. Each subscription service and related professional service shall provide the specifications of the service, the platforms used, user limitations, the subscription terms, and other terms and conditions.

5. Changes to the Platform. The Company may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to maintain or enhance:

   1. The Platform;

   2. The quality or delivery of the Company’s products or services to the Customer;

   3. The competitive strength of, or market for, the Company’s products or services;

   4. Such Platform’s cost efficiency and performance; and

   5. Comply with applicable law.

 

2. TERM

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This Agreement will commence on the Launch Date as defined in the Order Form and shall continue from year to year, unless earlier terminated in accordance with the terms of this Agreement.

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3. PLATFORM ACCESS AND AUTHORIZED USERS.

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1. Administrative users. During the configuration and set-up process for the Platform, the Customer will identify an administrative username and password for the Customer’s account with the Company. The Company shall reserve the right to refuse registration of or cancel usernames and passwords or delete account, only following prior written notice to the Customer, providing a reasonable opportunity for the Customer to address any concerns. Usernames and accounts shall not be deleted without the Customer’s consent, except in cases where continued use violates applicable law or the terms of this Agreement.

2. Authorized users. Customers may allow up to 999 employee(s) and/or independent contractor(s) as indicated on an Order Form to use the applicable Platform on behalf of Customer as the “Customer Users.” Additionally, if applicable to a Platform, the Customer may allow up to 999 vendor user(s) (“Vendor Users” and together with Customer Users, “Authorized Users”). Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User but may be reassigned to new Authorized Users. 

3. Authorized User conditions to use.

   1. As a condition to access and use the Platform

   2. Each Authorized User agrees to abide by the Company’s end-user terms of use, which it may update from time to time.

   3. Customer Users shall agree to abide by the terms of this Agreement or a subset thereof. Vendor Users shall agree to abide by the terms of the Company's Vendor Terms of Service applicable to such Platform, and the Customer shall ensure such compliance in each case.

   4. Upon becoming aware of any violation of any of the foregoing terms by any Authorized User, the Customer shall immediately notify the Company.

4. ​Account responsibility. ​​

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The Customer shall be responsible for all uses of any account to which the Customer has access, whether or not such use was authorized by the Customer and regardless of the Customer’s knowledge of such use, unless such use results from the negligence or data breach of the Company. The Customer is solely responsible for securing its Company account, passwords (including but not limited to administrative and user passwords), and files.

 

The Company shall not be responsible for any loss of information due to any irresponsible act, such as loss of the password by the user.

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4.  CONFIDENTIALITY

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Subject to Section 8 below, all confidential information disclosed by the Customer to the Company in connection with the performance of the above-mentioned services shall be held in strict confidence and safeguarded in accordance with applicable U.S. privacy laws and industry best practices. The Company shall use such information solely for the purpose of fulfilling its obligations under this agreement and shall not, under any circumstances, use or disclose such information—either directly or indirectly—for any personal gain or to any third party without the Customer’s prior written consent, except as required by law. The Company shall implement reasonable administrative, technical, and physical safeguards to protect the confidentiality and integrity of all such information.

 

5.  PROPRIETARY RIGHTS.

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1. Ownership.

   1. The Company shall retain all right, title, and interest and to the Services.

   2. The Company shall own and retain all rights, title, and interest in:

 

Any kind of services, software, applications, inventions, or other technology developed in connection with the Services;

All intellectual property and proprietary rights in and related to any of the foregoing subscription services (collectively, “Services IP”).

 

1. To the extent Customer acquires any right, title, or interest in any Services IP, Customer hereby assigns all of its right, title, and interest in such Services IP to the Company.​

2. Customer data and vendor information license. Customer hereby grants the Company a nonexclusive, transferable, sublicensable, worldwide, and royalty-free license to use and otherwise exploit:

   1. Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve a Platform, Software, and Services, both during and after the Term, and;

   2. Vendor Information for any lawful purpose.

 

To avoid any doubt, Company shall use, reproduce, and disclose Platform, Software, and Services related information, data, and material that is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Customer, all of which information, data, and material, will be owned by Company. “Software” means any and all computer programs, applications, source code, object code, modules, scripts, algorithms, tools, and related components, in executable or non-executable form, that are owned, developed, licensed, or otherwise provided by Company in connection with the Platform or Services, including any updates, upgrades, enhancements, modifications, patches, and documentation made available by Company from time to time. It is the Customer’s sole responsibility to back up Customer Data during the Term, and the Customer acknowledges that it will not have access to Customer Data through Company Name or any Platform following the expiration or termination of this Agreement.

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3.  Intellectual Property. The Company shall retain all the subscription services, including all documentation, modifications, improvements, upgrades, derivative works, and all other Intellectual Property rights in connection with the Service, including the Company's name, logos, and trademarks reproduced through the Service.

 

6. FEES & PAYMENT TERMS.

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1. SaaS Fees. The Customer shall pay the Company the then-applicable SaaS fees described in the Order Form as applicable, in accordance with the terms set forth therein (“Fees”).

2. Transaction Gateway Fees. Customer agrees to pay Company the transaction fees associated with the use of Company’s payment gateway services, as set forth in the applicable Order Form. These “Transaction Gateway Fees” include, without limitation, all fees related to credit/debit card and ACH transactions processed through Company’s designated gateway system.

3. ACH Authorization. Customer authorizes Company to initiate ACH debits from Customer’s designated bank account for the full amount of all fees, charges, and reimbursements due under this Agreement, as reflected in the applicable Order Form. Customer agrees to provide the required bank account information and a completed ACH authorization form to Company within thirty (30) days of executing the Order Form. Customer shall promptly notify MemberWorks of any changes to its banking information and submit an updated authorization form as needed.

4. Unpaid amounts are subject to a monthly finance charge on any outstanding balance.

5. The Company further reserves the right to suspend Services in the event of payment delinquency.

 

7. PAYMENT PROCESSING TERMS

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1. Customer Responsibilities. Customer is solely responsible for obtaining all necessary authorizations from end users or payers (“Card Holders”) to initiate payment transactions. Customer is responsible for the accuracy and completeness of all payment-related data it submits or that is submitted on its behalf. Customer acknowledges and agrees: (a) all transactions are solely between Customer and Card Holder; (b) Company acts as a third-party service provider and payment facilitator for Customer, not as a party to any transaction; (c) Company is not a buyer, seller, or merchant in connection with any transactions; (d) MemberWorks does not control or take responsibility for services rendered by Customer; (e) Customer bears sole responsibility for any payment-related disputes with Card Holders.

2. Payment Gateway and Processing. Other than the fees expressly described in this Agreement, the Company may not initiate or impose any additional fees or charges without the Customer’s prior written authorization.  The Company will facilitate payment transaction processing on behalf of the Customer. The Company or its designated provider(s) may terminate payment processing services if: (i) requested by the Customer’s payment processor or financial institution, (ii) the Company reasonably believes continued services would violate applicable law or regulation, or (iii) the Customer violates any applicable law, rule, or regulation.

3. Compliance and Additional Terms. Customer agrees to comply with all applicable rules and guidelines governing payment processing, including but not limited to:

   1. Operating rules of card brands

   2. National Automated Clearing House Association (NACHA) rules

   3. Any additional terms set forth in applicable merchant processing agreements

4. Data Handling and Security. Customer understands that Company is not a financial or credit reporting agency. Company is only responsible for transmitting data to facilitate or authorize certain payments for the Customer (or its customers) and is not liable for the outcomes of any credit checks, the operation of websites or internet service providers, financial institutions, financial processors, or the availability of the internet. Additionally, Company is not responsible for any damages or costs that Customer may incur from any instructions given, actions taken, or omissions made by Customer, its authorized users, Customer’s financial processor, financial institution, or internet service provider.

 

8. DATA & SECURITY.

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1. Compliance with notification laws. The Company shall comply with all applicable laws regarding the notification of individuals in the event of an unauthorized release of personally identifiable information and notification of other unauthorized data and information disclosures.

2. Data Ownership. Company acknowledges and agrees that Customer owns and controls all right, title, and interest in and to all Customer provided data that flows through the Platform, including data captured, generated, received, or processed by Company on behalf of Customer, in each case in connection with this Agreement. Company hereby irrevocably assigns, and agrees to further assign, to Customer the entire right, title and interest in and to all such data, without requirement of any additional consideration. Company will not use Customer data to contact any member without permission from the Customer. Company will not share individual member data with any third party except as necessary to append new information to the existing data or when permission is granted by the Customer.

3. Data Security. The term “Personal Information” shall mean any information relating to an identified or identifiable natural person. The term “ Process” shall mean access, collect, record, organize, use, store, adapt, alter, retrieve, consult, transfer, disclose or destroy. Company shall, and shall cause its agents and personnel that Process Personal Information to:

1. comply with all data protection and privacy laws and regulations in any relevant jurisdiction from time to time that are applicable to Company's Processing of Personal Information in accordance with this Agreement (including, without limitation, any applicable encryption requirements) (together, the “ Data Protection Laws”);

2. agree that all such Personal Information shall be deemed to be Customer’s Confidential Information and shall be owned by Customer;

3. Process that Personal Information only on the prior written instructions of Customer and only to the extent reasonably necessary for performance of this Agreement;

4. implement reasonable technical and organizational measures to protect that Personal Information against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the Processing involves the transmission of data over a network, and against all other unlawful forms of Processing;

5. take reasonable steps to ensure the reliability of personnel who have access to the Personal Information, including, without limitation that such personnel are qualified to do so and have received proper training; and require such personnel to comply with Company's obligations under Section 4 of this Agreement

6. not disclose Personal Information to any person except: 

   1. as required or permitted by this Agreement;

   2. with Customer’s prior written consent; or 

   3. pursuant to an order or requirement of a court of law, administrative agency, or other governmental body, provided that Company gives reasonable notice to Customer to contest such order or requirement;

7. promptly notify Customer of

   1. requests for information or complaints about the Processing of Personal Information;

   2. requests for access to Personal Information; or  (c)requests for Personal Information to be deleted or corrected.

8. fully cooperate with Customer regarding any of the items referred in Subsections vii and viii and provide Customer with information Customer reasonably requires to respond to requests or complaints of that or a similar nature (whether made to Customer, Company, or a third party);

9. inform Customer immediately in case the Personal Information may be at risk from seizure (including, without limitation, for purposes of satisfying a debt), insolvency or bankruptcy measures or any other activities of third parties. Company shall in such cases inform all third parties that the Personal Information is the sole property of Customer

10. not transfer Personal Information across a national border except:

    1. with Customer’s prior written consent; or

    2. where Personal Information is received in or from the European Economic Area, with Customer’s prior written consent and subject to any additional requirements of Customer (which may, for the avoidance of doubt, require Company to ensure such parties as are reasonably specified by Customer enter into the appropriate Model Clauses, which shall be defined as any or all of the contractual clauses referred to in European Commission Decisions C(2010) 593, C(2001) 4540, C(2001) 1539 and C(2004) 5271)

11. destroy or return to Customer all Personal Information in Company's control or possession within fifteen (15) days after expiration or termination of this Agreement.

    1. (d) Company shall also:

       1. notify Customer promptly should it be aware that, or reasonably suspect that, any breach of Subsection (a) or any other breach of security or unauthorized disclosure of or access to any Personal Information has occurred (a “ Breach”);

       2. perform an investigation to learn the cause of the Breach

       3. promptly take all steps necessary to remedy the event and prevent the Breach’s re-occurrence; and

       4. fully cooperate with Customer to comply with any notification requirements that may result from such Breach and promptly reimburse Customer for any costs incurred in connection with remediation and compensation e orts arising from any such Breach. Company shall document and maintain adequate retention process and policies for all Breaches in accordance with all applicable legal and regulatory requirements.

 

9. TERMINATION.

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This agreement may be terminated as follows:

1. in the event of Company's material breach of this Agreement, if such material breach is not cured within thirty (30) days after Customer notifies Company in writing of such material breach;

2. upon written notice to Company if Company makes a general assignment for the benefit of creditors, becomes insolvent, or a receiver is appointed for, or a court approves reorganization or arrangement proceedings on, Company.

3. Without Cause by either Party, for any reason or no reason, upon ninety (90) days’ prior written notice to the other Party.

 

10. INDEMNIFICATION.

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The Parties each agree to indemnify and hold harmless the other Party, its respective a   liates, employees, and permitted successors and assigns against any losses, claims, damages, penalties, liabilities, punitive damages, expenses, reasonable legal Fees of whatsoever kind or amount, which result from the negligence of or breach of this Agreement by the indemnifying Party, its respective a    liate or successors and any assign that occurs in connection with this Agreement. This section remains in full force and e ect even after the termination of the Agreement.

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11. LIMITATION OF LIABILITY.

 

In no event shall either Party:

 

1. Has liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, exceeding the aggregate of the total Fees paid or owed by the Customer and Vendors hereunder during 12 month(s) immediately preceding the date of the event giving rise to the claim (such amount being intended as a cumulative cap and not per incident).

2. Has any liability to the other for any lost profits or revenues or any indirect, incidental, consequential, cover, special, exemplary, or punitive damages, howsoever caused, whether in contract, tort or under any other conditions of liability.

 

The foregoing limitations and disclaimers shall not apply to the extent prohibited by applicable law.

 

12. GENERAL.

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1. Relationship of the Parties. The Parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the Party hereto, or an employee-employer relationship.

2. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of South Carolina, without reference to conflicts of laws principles. The Parties agree that the federal and state courts in the county of Berkeley County, South Carolina, will have exclusive jurisdiction and venue under this Agreement, and each Party hereby agrees to submit to such jurisdiction exclusively.

3. Assignability. Neither Party may assign this Agreement or the rights and obligations under it to any third party without the prior express written approval of the other Party, which shall not be unreason.

4. Amendments; Waiver. No provision of this Agreement may be supplemented, amended or waived (including by course of performance or of dealing, or usage of trade) unless such amendment or waiver is in writing and signed, in the case of an amendment, by the Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by a Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

5. Severability; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or​

6. affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.

7. Notices. Any notices required or permitted by this Agreement shall be in writing and delivered by certified mail or courier to the mentioned address.

8. Force Majeure. Neither Party shall be liable for any failure in performance of the obligation under this Agreement due to cause beyond that party's reasonable control (including and not limited to any pandemic, fire, strike, act, or order of public authority, and other acts of God) during the pendency of such event.

9. Modification. No modification of this Agreement shall be made unless in writing and signed by both Parties.

10. Entire Agreement. This Agreement represents the complete understanding of the Parties and cancels and replaces all previous contracts between them. It is intended as the final expression of their Agreement. It shall only be modified or changed through a written document signed by the Parties and specifically referencing this Agreement. This Agreement will take priority over any conflicting documents.

 

SERVICE LEVEL AND SUPPORT AGREEMENT

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Company has implemented security systems consisting of encryption, firewall technologies, and data backup processes, which Company manages and administers to provide appropriate security for the transmission of information over the Internet and for the protection of stored data. Company shall use industry-standard security measures and commercially reasonable efforts to maintain the confidentiality, integrity, and availability of Customer Data. Company shall promptly notify Customer of any unauthorized access, use, or disclosure of Customer Data, and shall bear all reasonable costs directly attributable to remedying any such incident to the extent caused by Company’s failure to comply with its obligations under this Agreement.

Company will use commercially reasonable efforts to ensure the reliability and availability of all Services under Company's control and will provide ninety-nine point nine percent (99.9%) uptime availability for Services from Company's hardware and software to the Internet backbone, excluding previously scheduled maintenance time. Deviations from the uptime availability commitment will result in a prorated credit for Services provided; however, if uptime falls below ninety-nine point five percent (99.5%) in any two consecutive calendar months, Customer shall have the right to terminate this Agreement upon written notice without penalty.

Customer acknowledges that Company is not responsible or liable for Customer’s connectivity to the Internet backbone, the availability of the Internet backbone, or Internet blackouts and brownouts beyond the control of Company. Customer must notify Company within thirty (30) days if Customer believes there has been a deviation for which it should be credited.

Notwithstanding anything to the contrary in this Agreement, Company’s liability limits shall not apply to breaches of confidentiality, data security obligations, or damages arising from Company’s gross negligence or willful misconduct.  Customer Support: Telephone, chat, and email support for all Company Services are available to customers from 8 a.m. to 5 p.m. EST, Monday through Friday (excluding federal holidays); and online help 24 hours per day, 7 days per week.

All customer submitted support and training tickets are classified as per the chart below: