Partner Network Platform Agreement

Last Modified: February 6, 2024

This Fireside Platform Agreement (this “Agreement”) is entered into by and between the entity agreeing to these terms (“Partner”) and Fireside Chat, Inc. (“Fireside”) (Partner and Fireside each, a “party” and collectively, the “parties”) and sets forth the terms and conditions under which Partner may purchase certain products and services of Fireside as set forth in one or more order forms executed by the parties that reference this Agreement (each, an “Order Form”). This Agreement is effective as of the date Partner agrees to it, pursuant to an Order Form (“Effective Date”).

1. Fireside Partner Platform
1.1.

The Fireside Platform (“Platform”) is an interactive streaming platform \, allowing Fireside partners to launch branded interactive network product offerings (“Partner Network”) which they leverage to create, publish and monetize content and community experiences and provide other benefits to individuals who have validly registered to access and use the Platform (“Users”). This Agreement is between Fireside and Partner and governs what services Fireside will provide to Partner and its Users as set forth in the applicable Order Form (“Services”) and how Partner may manage User Accounts and User Activities.

1.2.

Operation of Platform. Fireside shall develop, maintain, and operate a Partner-branded portal of the Platform (“Partner Network”) provided to Users. The Partner Network may be listed at a subdomain of the Platform, where all domains and subdomains will be owned and registered in the name of Fireside, or in another manner as otherwise agreed by the Parties in writing. Fireside may include “powered by Fireside” (or a similar attribution) within the Platform. Fireside will use commercially reasonable efforts to host and maintain the Platform in a manner that minimizes errors and interruptions. Through the Platform, Partner will be able to issue and manage memberships and subscriptions of its Users (“User Membership/s”) and to provide and manage certain benefits to its Users (“Member Benefits”). Partner shall be solely responsible for (i) setting the price and amount of User Memberships to be issued and (ii) determining and providing the Member Benefits to Users (with Fireside’s prior written approval). Partner agrees and acknowledges that Fireside may use third party service providers and partners in connection with the operation of the Platform, including exercise of Fireside’s rights hereunder.

1.3.

Users. Subject to Users agreeing to the then-current Fireside Terms of Service set forth at https://www.firesidechat.com/terms (“Terms of Service”), Fireside will provide Users access to the Platform in a manner that allows Users to purchase and subscribe to User Memberships to the Partner Network on the Platform. Nothing contained herein will limit Fireside’s rights under the Terms of Service in relation to Users. Partner agrees to reasonably cooperate with Fireside in order to permit Fireside to enforce its rights under the Terms of Service.

1.4.

Partner Content. From time to time, Partner may provide to Fireside certain video, audio, text, image, and other content (“Partner Content”) to be non-exclusively published or distributed by Fireside through the Platform, Partner Network, and third party distribution channels such as YouTube and Instagram. Fireside shall only publish and distribute Partner Content as directed by Partner, which may include Partner’s written instructions or User-initiated actions through Partner’s use of the Platform. Unless otherwise agreed upon by the Parties, Partner shall be solely responsible for (a) all costs and expenses for developing and producing the Partner Content; and (b) obtaining all necessary copyright, performance, reproduction rights and other related rights to the Partner Content, free and clear of all claims and encumbrances without violating the rights of any person or entity, including any third party intellectual property rights. Nothing in this Agreement restricts Partner from publishing or distributing Partner Content independently of Fireside.

2. Fees/Revenue
2.1.

Revenue Share. Partner shall pay Fireside (a) a Partner Platform Fee as set forth in the applicable Order Form (“Platform Fee”), and (b) a revenue share equal to twenty percent (20%) of all revenue actually received by Fireside from all User transactions that occur on the Partner Network (“User Transactions”) or additional monetization (i.e., pay per view content, brand integrations, commerce) that occur with respect to the Partner Network or Partner Content through the Partner Network, collectively “Additional Revenue Share”), after first deducting any Excluded Amounts. The remaining eighty percent (80%) of revenue shall be paid to Partner. “Excluded Amounts” means the Platform Fee, any applicable taxes, refunds, transaction fees, dispute fees, fees charged by third party platforms (e.g. app store fees), and chargebacks.

2.2.

Payment Processing. Fireside’s third party payment processor (“Payment Processor”) will be responsible for collecting and distributing all payments from Users for all User Transactions. The Payment Processor shall pay Partner its share of revenue from the User Transactions to the account designated by Partner. Partner shall be responsible for ensuring its payment account information is correct and up to date, and Partner shall promptly inform Fireside of any changes to its information. Each Party shall be responsible for its own taxes, duties, levies and other governmental charges (including sale and use taxes) that are imposed by a governmental authority with respect to the transactions contemplated hereunder.

3. Term & Termination
3.1.

Term. The initial term of this Agreement shall be one year (“Initial Term”). This Agreement will automatically renew for successive renewal terms of equal duration (each, a “Renewal Term”) unless either Party provides the other Party with written notice of non-renewal at least thirty (30) days before the end of the then-current term (collectively, the Initial Term and any Renewal Term(s) shall be the “Term”).

3.2.

Termination. This Agreement may be terminated by either Party (i) for cause, if the other Party is in material breach of this Agreement, the Fireside Community Guidelines set forth at “Community Guidelines” and/or Fireside Acceptable Use Policy set forth at “Acceptable Use Policy” and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching Party or (ii) for convenience, upon sixty (60) days’ prior written notice to the other Party (however, if Partner terminates for convenience, all Fees (including but not limited to the Platform Fee) become immediately due and payable to Fireside).

3.3.

Suspension. Fireside may temporarily suspend Partner’s access to the Platform (a) in the event Partner is determined by Fireside to have or attempted to have damaged, harmed or misused the Platform, the Partner Network, Fireside’s software, server, network or other systems, (b) as necessary to protect Fireside or its other partners, third party service providers, or Users from potential liability or harm, or (c) in the event Partner has violated the this Agreement, the Community Guidelines and/or Acceptable Use Policy. Fireside will notify Partner of the reason(s) for such suspension as soon as reasonably practicable and will restore Partner’s access to the Platform as soon as the event giving rise to the suspension has been resolved, as determined by Fireside in its reasonable discretion.

3.4.

Effect of Termination. Upon any expiration or termination of this Agreement, each Party’s right to use the other Party’s proprietary rights set forth in Section 4 and Confidential Information (defined below) will terminate. Unless this Agreement is terminated by Fireside for cause, Fireside shall continue to provide the Services for up to three (3) months from the termination date (the “Transition Period”) to allow for an orderly winddown of the Partner Network. Each Party will take commercially reasonable steps to cooperate with and assist the other Party in connection with the orderly wind-down of the Partner Network. The Revenue Share terms shall continue to apply during any Transition Period. Any provisions that by their nature are intended to survive termination or expiration shall survive termination or expiration of this Agreement. Fireside will not be responsible for any loss or damages incurred by Partner as a result of any termination or suspension of access as set forth in this Section 3.

4. Proprietary Rights
4.1.

Limited License Grant by Partner. Partner hereby grants to Fireside a non-exclusive (except as set forth herein), worldwide, royalty-free (except as expressly provided for herein) right and license during the term of this Agreement for Fireside to reproduce, perform, display, distribute, and otherwise use Partner IP solely for the purpose of (a) developing, hosting and maintaining the Partner Network on behalf of Partner, (b) creating and managing User Memberships on the Platform on behalf of Partner, and (c) performing its obligations specified in this Agreement, including the marketing and promotion of the Partner Network. “Partner IP” means Partner’s name, trade names, logo, trademarks, service marks, and trade dress (the “Partner Marks”), and other Partner Content provided to Fireside under this Agreement. Except for the limited licenses set forth herein, Partner retains all rights, title and interests to the Partner IP and Partner Content.

4.2.

Partner Obligations. Except as expressly permitted hereunder, Partner shall not and shall not permit or authorize any third party to: (a) copy, modify, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform; (b) translate or create derivative works based on the Platform; (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute or, time share the Platform; (d) access or use the Platform (or any part thereof) to build a competitive or substantially similar product or service; or (e) use the Platform outside the scope expressly permitted hereunder or other than for their legitimate business purposes as contemplated by this Agreement. In addition, Partner represents and warrants that it has not granted, and will not grant, any rights which conflict with those rights granted to Fireside hereunder.

4.3.

Platform Data. Partner agrees that the Terms of Service will govern the collection, use and disclosure of any information or data that is collected from Users through or via the Platform.

4.4.

Rights to Fireside Marks and Materials. Subject to the terms and conditions of this Agreement, Fireside hereby grants to Partner during the term a non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to use the Fireside Marks in connection with the activities contemplated hereunder. “Fireside Marks” means the trademarks, logos, branding, names, images, likenesses, and other indicia owned by Fireside.

4.5.

Use of the Trademarks. Each Party acknowledges: (a) the other Party is the owner of their respective Marks and all goodwill related thereto, and (b) all use of the their respective Marks and any goodwill accruing therefrom shall inure solely to the benefit of Party that owns the Marks; (c) neither Party will acquire ownership rights in or to the other Party’s Marks by virtue of this Agreement or otherwise; and (d) the high standards and reputation for quality symbolized by the respective Marks Marks. Each Party shall use the other Party’s Marks in a manner consistent with such quality standards and reputation and in accordance with any trademark usage guidelines provided by the other Party in accordance with any trademark usage guidelines provided.

4.6.

Feedback. The Parties agree that any feedback or suggestions (“Feedback”) (if any) given is voluntary. Each Party is free to use, disclose, reproduce, license or otherwise distribute the Feedback relating to its own products and services, without any obligations or restrictions of any kind, including intellectual property rights.

4.7.

Reservation of Rights. Partner reserves any and all right, title and interest in and to the Partner IP (including all Partner Content), other than the limited rights granted to Fireside in this Agreement. Fireside reserves any and all right, title and interest in and to the Platform, other than the limited rights expressly granted to Partner in this Agreement. Except as expressly provided for herein, there are no other licenses or other rights granted by either Party with respect to the intellectual property or other proprietary rights of such Party, and each Party shall retain ownership of all of its own intellectual property, work product, and other materials developed or otherwise used by it in connection with this Agreement.

5. Confidentiality

Confidential Information means the terms of this Agreement, and all confidential and proprietary information of Fireside or Partner, including without limitation, all business plans, product plans, financial information, software, designs, technical, business, or financial data of any nature whatsoever, provided that such information is marked or designated in writing as “confidential,” “proprietary,” or with a similar term or designation, or information that would reasonably be regarded as being confidential by its nature. Confidential Information excludes information that is: (a) rightfully in the receiving Party’s possession without prior obligation of confidentiality from the disclosing Party; (b) a matter of public knowledge (or becomes a matter of public knowledge other than through a breach of confidentiality by the other Party); (c) rightfully furnished to the receiving Party by a third party without a confidentiality restriction; or (d) independently developed by the receiving Party without reference to the disclosing Party's Confidential Information. Each Party shall: (a) use the other Party’s Confidential Information only for exercising rights and performing obligations in connection with this Agreement; and (b) protect from disclosure any Confidential Information disclosed by the other Party for a period commencing upon the disclosure date until three years later. Notwithstanding the foregoing, either Party may disclose Confidential Information: (a) to an affiliate to fulfill its obligations or exercise its rights under this Agreement so long as such affiliate agrees to comply with these restrictions in writing; and (b) if required by law or regulatory authorities provided the receiving Party has given the disclosing Party prompt notice before disclosure. Fireside shall not be responsible for unauthorized disclosure of Users data stored within the Partner Network arising from a data security breach. Parter is solely responsible for all obligations to comply with laws applicable to Partner’s Partner Network use, including without limitation any personal data processing. Fireside may collect, use, store and transmit technical and related information about Partner and Partner Network Users’ use of the Platform and Partner Network, including server internet protocol addresses, hardware identification, operating system, application software, peripheral hardware, and usage statistics, to facilitate the provisioning of Support. Partner is responsible for obtaining all consents required to enable Fireside to exercise its confidentiality rights, in compliance with applicable law.

6. Disclaimers; Limitation of Liability; Indemnification
6.1.

Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FIRESIDE DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER (INCLUDING WITH RESPECT TO THE PLATFORM), EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

6.2.

Limitation of Liability. IN NO EVENT WILL FIRESIDE BE LIABLE TO PARTNER FOR (A) ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE, PROFITS, GOODWILL, REVENUE OR DATA, OR BUSINESS INTERRUPTION OR THE COST OF PROCURING SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS OR DAMAGES; OR (B) ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID OR PAYABLE TO FIRESIDE IN THE SIX MONTHS PRECEDING THE DATE OF THE CLAIM. PARTNER MAY NOT BRING A CLAIM UNDER THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE END OF THE TERM.

6.3.

Acknowledgement. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY (I) REGARDLESS OF THE FORM OR THEORY ON WHICH A CLAIM OR ACTION IS BASED, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE OR RELIANCE), PRODUCT LIABILITY OR OTHERWISE; (II) EVEN IF SUCH PARTY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (III) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED FOR IN THIS AGREEMENT.

6.4.

Indemnification. Partner shall indemnify and hold harmless Fireside from any and all claims, actions, suits, damages, liabilities, losses, and expenses (including reasonable external attorneys’ fees) payable or incurred in connection with or resulting from Partner’s use of the Platform and Partner Network (including any Partner IP, Partner Content, membership benefits provided by Partner to Users, and Partner’s acts, omissions, and interactions with Users), other than claims solely caused by Fireside’s gross negligence or willful misconduct.

7. General
7.1.

Partner agrees that Fireside  may as part of its promotion of the Partner Network (a) identify Partner as a Fireside partner and use Partner’s name and Partner Marks in marketing and promotional materials, collateral, presentations, publications and and press releases, and (b) develop a brief customer profile for use by Fireside on its website for marketing and promotional purposes, with the prior consent of Partner in each instance, not to be unreasonably withheld.

7.2.

This Agreement is governed and interpreted by California law. Any lawsuit arising directly or indirectly out of this Agreement shall be litigated in the Superior Court of Santa Clara, California or, if original jurisdiction can be established, in the United States District Court for the Northern District of California. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Both parties shall comply with all applicable laws and regulations and diversion contrary to such laws is expressly prohibited. This Agreement confers no rights or remedies on any third party, other than the parties to this Agreement and their respective successors and permitted assigns. Fireside reserves all rights not expressly granted to Partner in this Agreement. The parties are independent contractors. This Agreement and any attachments contain the entire understanding between the Parties and may be amended only by a written document signed by both parties. Partner shall not assign or transfer any rights under this Agreement or delegate any of its duties under this Agreement without Fireside’s prior written consent, and any such action in violation of this provision, is null and void, of no force, and a breach of this Agreement. Fireside may assign or transfer this Agreement to any successors-in-interest to all or substantially all of the business or assets of Fireside whether by merger, reorganization, asset sale or otherwise, If any part of this Agreement or attachments hereto are held unenforceable, the validity of the remaining provisions shall not be affected. In the event of conflict or inconsistency among an Order or this Agreement, the Agreement shall control.