Bonfire Creator Terms of Service
Last updated: November 26th, 2023
Please read these Bonfire Creator Terms of Service (the “Terms”) carefully. These Terms are a legally binding agreement between you (“you”, “your”, or “Creator”) and Treehouse Technologies, Inc. (“we”, “us”, or “Bonfire”). By clicking or tapping any button, box, or other icon marked “I Accept,” “I Agree,” or “OK” (or any similar term) in connection with these Terms, or by otherwise accessing and using the Bonfire Platform (as defined below), you acknowledge and agree to these Terms, and you further confirm that you are of legal age where you live and that you have the legal capacity to enter into these Terms.
These Terms are between you and Bonfire and govern your access to and use of all services (including website creation and hosting, community management, content sharing, audiovisual streaming, data and analytics, and non-fungible token (“NFT”)-related services) provided by Bonfire in connection with Bonfire’s online platform for creators, made available at the website and associated domains of www.bonfire.xyz or via other websites or means as we may determine from time to time (the “Bonfire Platform”).
If you are an individual accessing or using the Services on behalf of, or for the benefit of, any corporation, partnership, or other entity with which you are associated (an “Organization”), then you are agreeing to these Terms on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Terms. In such case, references to “you” and “Creator” in these Terms will refer to both the individual using the Services and to any such Organization.
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 19.1 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS, ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
- Changes to Terms and Platform
We may change, modify or supplement these Terms from time to time at our sole discretion by notifying you of such changes by any reasonable means, including by posting modified Terms through the Bonfire Platform. No such changes will apply to any dispute between you and us arising before the date on which we posted the revised Terms incorporating such changes, or otherwise notified you of such changes. The “Last Updated” legend above indicates when these Terms were last changed. Your access to or use of the Bonfire Platform after any changes to these Terms will constitute your acceptance of such changes. We may, at any time and without liability: (a) modify or discontinue all or part of the Bonfire Platform; (b) charge, modify or waive any fees required to use the Bonfire Platform; or (c) offer opportunities to some or all creators.
You may not use the Bonfire Platform outside the scope set forth in these Terms without our prior written consent, which may be withheld in our sole discretion. We reserve the right to refuse, modify, or terminate access to or use of all or part of the Bonfire Platform to anyone for any reason at our sole discretion.
- Registration; Accounts
You may be required to register to use all or part of the Bonfire Platform. If you register, you must accurately and completely supply all requested information in order to complete the registration process. You represent and warrant that any information you provide in connection with the Bonfire Platform (including through the registration process) is and will remain accurate and complete at all times during your access to and use of the Bonfire Platform, and that you will maintain and update such information as needed. We may also establish additional or different requirements from time to time by posting such requirements on the Bonfire Platform or otherwise communicating them to you.
We may reject, or require that you change, any username, password, or other information that you provide to us in registering. Your username and password are for your personal use only and should be kept confidential. You, and not us, are responsible for any use or misuse of your username or password, and you must promptly notify us of any breach or unauthorized use of or access to your username or password, or your account. You will be solely liable for all activity (including activity by third parties) arising from your access to, use of, or any other act or omission with respect to the Bonfire Platform, whether or not authorized by you.
You are responsible for obtaining and maintaining all hardware, software (and related licenses), and communications equipment necessary to access and use the Bonfire Platform and for paying all third-party access charges (e.g., ISP, telecommunications, etc.) incurred while using the Bonfire Platform. You acknowledge that you have been advised of and can comply with all minimum networking, hardware, software (and related licenses), firewall, environmental conditions, and communications requirements applicable to the Bonfire Platform.
We reserve the right in our sole discretion to terminate or suspend any account that violates any provision of these Terms, as well as any account that has been inactive for a substantial period of time.
- Platform Content
The Bonfire Platform may post, display, provide, and otherwise make available information, content, data, datasets, analytics, software, images, text, graphics, designs, charts, data illustrations, logos, trademarks, service marks, or other materials (which may include user or creator profile information, information about NFTs or other crypto-assets, and financial material) (collectively, “Platform Content”).
WE MAKE NO REPRESENTATIONS AS TO THE COMPLETENESS, ACCURACY, RELIABILITY, VALIDITY OR TIMELINESS OF ANY PLATFORM CONTENT POSTED, DISPLAYED, PROVIDED, OR OTHERWISE MADE AVAILABLE BY THE BONFIRE PLATFORM, INCLUDING THIRD PARTY MATERIALS (AS DEFINED BELOW). IF YOU CHOOSE TO RELY ON ANY PLATFORM CONTENT POSTED, DISPLAYED, PROVIDED, OR OTHERWISE MADE AVAILABLE ON THE BONFIRE PLATFORM, YOU DO SO AT YOUR OWN RISK.
WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR YOUR USE OF THE BONFIRE PLATFORM, AND/OR TO ENFORCE THESE TERMS AGAINST YOU OR ANY OTHER USER. WE WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR: (A) YOUR OR ANY OTHER USER’S ACTION OR INACTION IN CONNECTION WITH ANY PLATFORM CONTENT POSTED, DISPLAYED, PROVIDED OR OTHERWISE MADE AVAILABLE BY THE BONFIRE PLATFORM; (B) BREACH OF THESE TERMS; OR (C) OUR ENFORCEMENT OF (OR FAILURE TO ENFORCE) THESE TERMS AGAINST YOU OR ANY OTHER USER.
For the avoidance of doubt, Bonfire will have no obligation to provide you with any consulting, implementation, or other professional services, except as set forth in a separate written agreement between you and Bonfire.
- Creator Materials
The Bonfire Platform may allow you (and other users) to submit, post, display, provide, or otherwise make available content such as information about NFTs or other crypto-assets, audiovisual content, livestreams, text posts, messages, comments, and other content or information (collectively, “Creator Materials”).
AS BETWEEN YOU AND BONFIRE, ALL CREATOR MATERIALS YOU CREATE REMAINS YOURS, SUBJECT OT THE RIGHTS GRANTED IN THESE TERMS. WE CLAIM NO OWNERSHIP RIGHTS OVER CREATOR MATERIALS CREATED BY YOU. However, you acknowledge that by providing or sharing Creator Materials in connection with the Creator Platform, you agree to allow other users of the Bonfire Platform to view, share, and otherwise interact with your Creator Materials. We are not responsible for, and have no control over, any use or misuse of (including any distribution by) any third party of your Creator Materials.
Without limitation to any of our other rights under these Terms, you hereby grant to us (and any third party hosting providers acting on our behalf) a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable, and fully sublicensable (through multiple tiers) license, without payment of additional consideration to you or any third party, to use, analyze, collect, copy, reproduce, distribute, perform and display (publicly or otherwise), adapt, modify, create derivative works of or otherwise exploit (collectively, “Use”) your Creator Materials, in any format or media now known or hereafter developed: (i) for our business purposes to allow us to provide, maintain, improve, and protect the Bonfire Platform; and (ii) for promotional purposes such as creator testimonials or features
In connection with your Creator Materials, you represent and warrant that:
- You own or otherwise have (and will continue to maintain) all rights and permissions necessary to post your Creator Materials on the Bonfire Platform (and to grant all licenses under these Terms), and you have obtained, and are solely responsible for obtaining any all consents required by Applicable Law to post your Creator Materials, including Creator Materials relating to third parties.
- You have the written consent of each and every identifiable natural person in your Creator Materials, if any, to use such person’s name or likeness in the manner contemplated by the Bonfire Platform and these Terms, and each such person has released you and Bonfire from any liability that may arise in relation to such use.
- Your Creator Materials, and our use thereof as contemplated by the Bonfire Platform and these Terms, will not violate any Applicable Law or infringe any rights, including intellectual property and other proprietary rights, of any third party.
- All of your Creator Materials (and any other information that you provide to us in connection with your Creator Materials) is truthful and accurate.
We take no responsibility and assume no liability for any Creator Materials that you or any other user or third party makes available. You will be solely responsible for your Creator Materials and the consequences of making it available, and you agree that we are only acting as a passive conduit for the online distribution and publication of Creator Materials. You agree that you may be exposed to Creator Materials that is inaccurate, incomplete or otherwise unsuited to your purpose, and you agree that we will not be responsible or liable for any damages you allege to incur in connection with Creator Materials. We may (but have no obligation to) monitor, evaluate, alter, or remove Creator Materials before or after it appears on the Bonfire Platform, or analyze your access to or use of the Bonfire Platform, for any or no reason.
- Third Party Materials
The Bonfire Platform may post, display, provide and otherwise make available Platform Content owned or controlled by third parties as well as information derived from such Platform Content (all such materials, “Third Party Materials”). Bonfire does not endorse or assume any responsibility for any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness, or safety of any Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading, or deceptive. Third Party Materials may include data and other information about NFTs or other crypto-assets that was obtained or derived from third party sources or other Creator Materials.
Nothing in these Terms will be deemed to be a representation or warranty by Bonfire with respect to any Third Party Materials. We have no obligation to monitor any Third Party Materials, and we may remove or disable access to any Third Party Materials (in whole or part) through the Bonfire Platform at any time. In addition, the availability of any Third Party Materials through the Bonfire Platform does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship among you, Bonfire, or any such provider. If you access a third-party website or service from the Bonfire Platform, share your Creator Materials on or through any third-party website or service, or rely on any Third Party Materials, you do so at your own risk. You expressly relieve Bonfire from any and all liability arising from your use of any Third Party Materials.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND MAY BE SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS, AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
- Proprietary Rights
The Bonfire Platform, all Platform Content in or made available in connection with the Bonfire Platform (excluding Third Party Materials and Creator Materials), and all intellectual property rights related thereto (“Bonfire Materials”), are the exclusive property of Bonfire. Except as expressly permitted in these Terms, nothing in these Terms will be deemed to create a license or grant any other rights with respect to the Bonfire Materials. Use of the Bonfire Materials and Third Party Materials for any purpose not expressly permitted by these Terms is prohibited.
Subject to the terms and conditions of these Terms, you are hereby granted a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to use the Bonfire Platform during the term of these Terms, for your internal use only, and only to the extent permitted by the features and functionalities of the Bonfire Platform.
You may choose to, or we may invite you to, submit comments or ideas relating to Bonfire, the Bonfire Platform, or Bonfire Materials (including about how to improve the Bonfire Platform or our other products and services) (“Feedback”). By making available any Feedback, you hereby agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Bonfire under any agency, fiduciary or other obligation, and that we are free to Use the Feedback (and to authorize others to do so) in any way whatsoever without any additional compensation to you, and to publicly disclose the Feedback to others. Without limiting the foregoing, you acknowledge that, by receiving your Feedback, Bonfire does not waive any rights to use similar or related ideas previously known to Bonfire, or developed by its personnel, or obtained from other sources.
- Acceptable Use Policy
In connection with the Bonfire Platform, you will not, and will not cause, assist, or otherwise encourage any third party to:
- Use the Bonfire Platform in any manner that violates or facilitates the violation of any applicable federal, state, local, or foreign laws (including common law), codes, statutes, ordinances, rules, regulations, regulatory bulletins, interpretations or guidance or orders, decrees and orders of, official releases or any other requirements by, any governmental authority or agency (collectively, “Applicable Law”);
- Use the Bonfire Platform for any purpose or in connection with any activity that is fraudulent, illegal or otherwise tortious or unlawful (including impersonating another person, company, or entity or engaging in misleading or otherwise unethical marketing or advertising practices);
- Reproduce, modify, adapt, translate, create derivative works of, or otherwise exploit any portion of (or any use of) the Bonfire Platform, or any Bonfire Materials, except as expressly authorized in these Terms;
- Remove any copyright, trademark or other proprietary rights notice from the Bonfire Platform or any Bonfire Materials;
- Post, transmit or otherwise make available through or in connection with the Bonfire Platform any materials that are or may be: (a) threatening, harassing, degrading, hateful, or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent, or otherwise tortious or illegal, including in connection with the disclosure of insider information under securities law or of a party’s trade secrets; (c) obscene, indecent, pornographic, or otherwise objectionable; (d) protected by copyright, trademark, trade secret, right of publicity, privacy, or any other proprietary right, without the express prior written consent of the applicable owner; (e) information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (f) information or content that you know is not correct and current;
- Post, transmit or otherwise make available any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”);
- Interfere with or disrupt the operation of the Bonfire Platform or the servers or networks used to make the Bonfire Platform available, including by hacking or defacing any portion of the Bonfire Platform; or violate any requirement, procedure or policy of such servers or networks;
- Perform testing of the Bonfire Platform, or the systems or networks used to provide the Bonfire Platform, to attempt to find vulnerabilities;
- Run a computer program, a set of computer programs, or other operations to attempt to assess the relative performance of the Bonfire Platform, or the systems or networks used to provide the Bonfire Platform;
- Restrict or inhibit any other person from using the Bonfire Platform;
- Sell, resell, rent, lease, loan, timeshare, distribute, or otherwise make available any portion of the Bonfire Platform, or any Bonfire Materials, to a third party or provide any functionality of the Bonfire Platform to any third party;
- Frame or mirror any portion of the Bonfire Platform, or otherwise incorporate any portion of the Bonfire Platform or Bonfire Materials into any product or service;
- Reverse engineer, decompile or disassemble, or otherwise attempt to discover the source code of underlying ideas or algorithms of, any portion of the Bonfire Platform, or any Bonfire Materials, except where such restriction is expressly prohibited by Applicable Law;
- Interfere with any data or analytics on the Bonfire Platform;
- Harvest or collect information from the Bonfire Platform;
- Systematically download and store Bonfire Materials;
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Bonfire Materials, or reproduce or circumvent the navigational structure or presentation of the Bonfire Platform; or
- Access or use the Bonfire Platform in a way intended to avoid incurring fees or exceeding any applicable usage limits or quotas.
- Your Responsibilities
You represent and warrant that:
- you have obtained all the necessary licenses, permits, consents, or approvals from or by, and have made all necessary notices to, all government agencies (whether federal, state, municipal or local) as necessary to fully perform under these Terms, Use (and allow Bonfire to Use) your Creator Materials, and as required by Applicable Law;
- you are authorized by your Organization, if applicable, to conduct business on the Organization’s behalf and to bind such Organization to these Terms;
- you have the right to consent to these Terms and act in accordance with its terms;
- the acceptance of and performance of these Terms are within your corporate powers;
- if you are an Organization, you are: (a) duly organized, validly existing and in good standing under the laws of the jurisdiction of your organization; (b) qualified to transact business; (c) appropriately licensed where applicable; and (d) acknowledging that no demand for such qualification or licensing has been made upon you by any state or local municipality, and that, in any event, you are in compliance with the Applicable Laws of any such jurisdiction to the extent necessary to ensure the enforceability of these Terms;
- you are able to, and will, perform each and every covenant in these Terms;
- you have not filed a petition in bankruptcy or for protection under any other federal or state debtor relief law during your time of engagement with Bonfire, and you will immediately inform Bonfire in writing if this status changes; and
- there is no action, suit, proceeding, investigation, litigation or threat thereof that, either individually or in the aggregate, would adversely affect your ability to perform under these Terms.
Neither party may use the names, trade names, trademarks, logos, service marks or trade dress of the other party in any manner other than as expressly set forth in these Terms, including in connection with advertising, press release, promotional and marketing materials or activities, or any other public communication or disclosure with respect to these Terms or the Bonfire Platform, without such party’s prior written consent, which may be withheld or granted in its sole discretion. Notwithstanding the foregoing, you grant to Bonfire the limited, non-exclusive right to use your name, logos, and trademarks (collectively, “User Marks”): (a) on internal and public materials (including Bonfire’s website) to identify you as a user of the Bonfire Platform; and (b) as part of authorized press releases (as described below). Bonfire agrees that its use of User Marks, including the goodwill and reputation associated therewith, will be in accordance with your generally applicable trademark guidelines. Unless otherwise agreed in writing, Bonfire will cease using the User Marks within a commercially reasonable period after termination of these Terms.
You may have access to information (in any form) that relates Bonfire’s past, present, and future activities including research, development, business activities, products, services, processes, know-how and technical knowledge, which may be identified by Bonfire as confidential or should reasonably be understood to be confidential (“Confidential Information”). Confidential Information may only be used by you consistent with the rights and obligations of these Terms. Confidential Information includes all Bonfire Materials and any related documentation made available by Bonfire to you. Except as permitted in this Section or as otherwise required by Applicable Law, you will not disclose Confidential Information to any third party. You agree to protect Confidential Information in the same manner that you protect your own similar confidential information, but in no event using less than a reasonable standard of care. You must restrict access to Confidential Information to your personnel (including personnel employed by your affiliates) and subcontractors with a reasonable need to use such Confidential Information pursuant to your rights and obligations under these Terms, and you must ensure that such personnel and subcontractors are bound by substantially similar obligations of confidentiality to those in this Section. Nothing in these Terms will prohibit or limit your use of Confidential Information: (a) previously known to you without an obligation of confidentiality; (b) independently developed by or for you without use of or reference to Confidential Information; (c) acquired by you from a third party that was not, to your knowledge, under an obligation of confidentiality; or (d) that is or becomes publicly available through no breach of these Terms.
- Subscriptions; Trials
12.1. Subscriptions Generally
If you purchase access to the Bonfire Platform on a subscription basis (or, if you start a free trial for such a subscription if made available to you), your subscription will renew automatically (at the end of the free trial period, if applicable) at the tier, price, and frequency stated when you made the purchase or began the free trial, if applicable, in each case unless Bonfire otherwise notifies you in writing.
Unless you set a subscription to stop automatically renewing prior to its renewal date or cancel your free trial before it ends (in each case, in the manner specified by the Bonfire Platform or the subscription terms), you authorize Bonfire (without further notice to you, unless otherwise required by Applicable Law) to charge the payment method you have provided to us in the amount of the then-current subscription Fees (as defined below) and any applicable taxes, on a monthly basis or at any other frequency specified by the Bonfire Platform or the subscription terms and agreed to by you. If we cannot charge you payment method for any reason, such as expired payment method information or insufficient funds, you remain responsible for all uncollected amounts, and we may initiate additional attempts to charge the payment method as you may update your payment method information. We may terminate your subscription at any time, or change the terms applicable to subscriptions. If we terminate your subscription, you will receive a prorated refund of any prepaid and unused Fees, if applicable. Otherwise, there are no refunds for subscription Fees.
12.2. Free Trials
From time to time, Bonfire may elect to offer free trials for subscriptions. You are limited to participating in one (1) free trial (or, if you are an Organization, your entire Organization is so limited). Free trials may be governed by terms and conditions that are separate from or supplement these terms. If you participate in a free trial, you should review all terms applicable to such trial.
- Feature-Specific Terms
13.1. Bonfire Passes
We may make available features or other functionality on the Bonfire Platform that allow you to offer NFTs (or other types of digital tokens) that confer certain membership or other benefits to their holder (such features or functionality, the “Passes Feature” and such NFTs, “Passes”) for sale to end users of the Bonfire Platform. Without limitation to your other obligations in these Terms, access to and use of the Passes Feature (including, for the avoidance of doubt, the offer for sale of any Pass) is subject to the terms and conditions of this Section.
- All sales of Passes are subject to the fee schedule set forth on the Bonfire Platform or otherwise made available by us to you in writing (“Passes Rate Card”). We reserve the right to change the Passes Rate Card from time to time upon written notice to you, and any sales of Passes after our provision of such notice will be subject to the updated Passes Rate Card.
- All sales of Passes are final, non-creditable, and nonrefundable. You will not, directly or indirectly, represent to end users or other third parties that Passes are or may be creditable or refundable.
- We reserve the right to temporarily suspend or terminate your access to and use of the Passes Feature at any time if we determine, in our sole discretion, that you: (a) have violated these Terms; or (b) your continued use of the Passes Feature may expose us or any third party to liability or may harm our reputation.
- We reserve the right to temporarily suspend or end our general provision of the Passes Feature in our sole discretion.
13.2. Data Imports
We may make available features or other functionality on the Bonfire Platform that allow you to upload or otherwise provide us with computer files or other materials that contains lists or other compilations of third party contact information such as names and email addresses (“Data Imports”). Without limitation to your other obligations in these Terms, your access to or use of such features or functionality (including uploading or providing any Data Imports to us) is subject to the terms and conditions of this Section:
- You represent and warrant that (a) you have obtained all necessary rights, consents, and authorizations (including any notices or consents required under applicable law) to provide us with the information contained in your Data Imports; and (b) you will comply with appliable law (including, for the avoidance of doubt, applicable privacy and data protection laws) in connection with your provision of Data Imports and your access to and use of related features and functionality.
- You will defend, indemnify, and hold harmless Bonfire and the Bonfire Entities (as defined below), and its and their respective successors and assigns, from and against any and all damages, obligations, losses, liabilities, costs, debt, and expenses (including attorneys’ fees) in connection with any claim, action, suit, or proceeding related to your provision of Data Imports or your access to and use of related features and functionality.
14. Fees; Taxes; Audit
Any fees (whether on a subscription basis or otherwise) for your access to or use of the Bonfire Platform (collectively, “Fees”) are as communicated to you by us from time to time (except that if we have a separate written agreement setting forth any Fees, such agreement will control). We reserve the right to modify, change, supplement, or add to Fees from time to time. We will provide you with notice of any such modifications, changes, supplements, or additions through the Bonfire Platform, via email, or through other reasonable means, and your continued use of the Bonfire Platform indicates your acceptance of such modifications, changes, supplements or additions to Fees. We reserve the right to require payment in advance.
You are responsible for any taxes associated with Fees. You must agree to our payment method and must pay all Fees and applicable taxes within the time period as specified in writing by us on the applicable invoice.
We may use third party payment processors to process your payment of Fees. The processing of such payments will be subject to the terms, conditions, and privacy policies of the applicable third party payment processor, in addition to these Terms.
Bonfire reserves the right, upon reasonable prior notice to you and during normal business hours, to itself (or through its designees) audit your activity and any documentation in connection with the Bonfire Platform for the purpose of verifying your compliance with these Terms, including any payment terms. If such audit reveals that you have improperly used the Bonfire Platform, or have failed to make payments as required under these Terms, such conduct will be considered a material breach of these Terms and Bonfire may choose, in its sole discretion to terminate or suspend your access to the Bonfire Platform, to terminate or suspend these Terms, and/or to invoice you for such unauthorized use based upon Bonfire’s standard fees in effect at the time of the audit, which you will promptly pay to Bonfire. If any underpaid fees exceed five percent (5%) of the fees actually paid by you, you will also pay Bonfire’s reasonable costs of conducting the audit.
- Compliance with Laws
The Bonfire Platform is controlled or operated (or both) from the United States, and is not intended to subject Bonfire to any non-U.S. jurisdiction or law. The Bonfire Platform may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Bonfire Platform is at your own risk, and you must comply with all Applicable Laws in doing so. We may limit the Bonfire Platform’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
In no event will Bonfire be obligated to take any action that would cause Bonfire to be in violation of any Applicable Laws or would result in Bonfire being an escrow agent, debt collector or consumer reporting agency under the Fair Credit Reporting Act. If a change in Applicable Law makes the continued operation of any part of the Bonfire Platform, in our sole discretion, unduly burdensome or unlawful or if a regulatory authority directs Bonfire to suspend or cease operating the Bonfire Platform, we may cease offering the Bonfire Platform and terminate these Terms upon notice to you, and without further obligation to you, after which we will return to you any applicable prepaid and unused Fees.
You are responsible for complying with U.S. export controls and for any violation of such controls, including any U.S. embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not: (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users. We will not be required, either directly or indirectly, to provide goods, software, services and/or technical data that may be prohibited by Applicable Laws (including as related to export control and sanctions).
You will defend, indemnify, and hold harmless Bonfire and the Bonfire Entities (as defined below), and its and their respective successors and assigns, from and against any and all damages, obligations, losses, liabilities, costs, debt, and expenses (including attorneys’ fees) in connection with any claim, action, suit, or proceeding related to: (a) your use of or access to the Bonfire Platform, including any Platform Content and Creator Materials made available on the Bonfire Platform; (b) your alleged violation of these Terms, including any of your representations and warranties; (c) your alleged violation of any terms or conditions applicable to Third Party Materials; (d) your alleged violation, misappropriation or infringement of any third-party right, including any right of privacy or intellectual property right; (e) your alleged violation of Applicable Law; (f) your Creator Materials or any other material made available via your account (including misleading, false, incomplete, or inaccurate information); (g) your alleged fraud, negligence or willful misconduct; and/or (h) any other party’s access to or use of the Bonfire Platform with your username, password, or other security-related information.
- Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE BONFIRE PLATFORM AND ANY PLATFORM CONTENT MADE AVAILABLE ON THE BONFIRE PLATFORM (INCLUDING BONFIRE MATERIALS, THIRD PARTY MATERIALS, AND CREATOR MATERIALS), ARE MADE AVAILABLE ON AN “AS IS,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) BONFIRE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE BONFIRE PLATFORM AND ANY PLATFORM CONTENT MADE AVAILABLE ON THE BONFIRE PLATFORM (INCLUDING BONFIRE MATERIALS, THIRD PARTY MATERIALS, AND CREATOR MATERIALS), INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF BOTH BONFIRE AND ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS (COLLECTIVELY, THE “BONFIRE ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
While we try to maintain the timeliness, integrity and security of the Bonfire Platform, we do not guarantee that the Bonfire Platform or any Platform Content made available on the Bonfire Platform is or will remain updated, complete, accurate, correct, or secure, or that access to the Bonfire Platform will be uninterrupted. The Bonfire Platform and the Platform Content made available on the Bonfire Platform may include inaccuracies, errors and materials that violate or conflict with these Terms. Additionally, third parties may make unauthorized alterations to the Bonfire Platform.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) BONFIRE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, AND LOSS OF SECURITY OF CREATOR MATERIALS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY CREATOR MATERIALS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, BONFIRE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE BONFIRE PLATFORM OR ANY CONTENT MADE AVAILABLE BY THE BONFIRE PLATFORM (INCLUDING BONFIRE MATERIALS, THIRD PARTY MATERIALS, AND CREATOR MATERIALS), INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE BONFIRE PLATFORM, PLATFORM CONTENT MADE AVAILABLE ON THE BONFIRE PLATFORM (INCLUDING BONFIRE MATERIALS, THIRD PARTY MATERIALS, AND CREATOR MATERIALS) IS TO STOP USING THE BONFIRE PLATFORM; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF BONFIRE FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY YOU TO BONFIRE WITH RESPECT TO THE BONFIRE PLATFORM IN THE SIX (6) MONTHS BEFORE THE DISPUTE. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF BOTH BONFIRE AND THE BONFIRE ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
No action, regardless of form, arising out of these Terms may be brought by you more than 1 year after you knew, or should have known, of the event giving rise to the cause of action.
- Term; Termination
These Terms will continue in full force and effect until terminated in accordance with the terms set forth herein.
19.2. Termination; Effect of Termination
You may terminate these Terms at any time via the Bonfire Platform by deleting your account and ceasing your access to and use of the Bonfire Platform.
In addition, and without limitation, to our other termination rights under these Terms, we may terminate these Terms immediately upon written notice to you if you breach these Terms. We may also terminate these Terms if you cease your business operations, become subject to insolvency proceedings and the proceeding are not dismissed within 60 days, or otherwise become unable to meet your obligations under these Terms.
- Your right to access and use the Bonfire Platform will cease immediately;
- You will pay all Fees accrued prior to the date of termination (for partial months or partial performance, applicable Fees will be pro-rated); and
- You must promptly destroy (or, at Bonfire’s written instruction, return) all Confidential Information; except that you may retain any Confidential Information to the extent, and only for so long as, you are required to do so under Applicable Law or by your retention policies, provided that you will continue to treat it as Confidential Information.
- The following provisions will survive any termination of these Terms: Sections 4 through 9 (inclusive), Section 11, Section 14 (with respect to any Fees accrued before the date of termination), Sections 15 through 19 (inclusive).
In addition, and without limitation, to our other termination rights under these Terms, we may terminate or suspend your right to access or use all or any portion of the Bonfire Platform at any time, for any or no reason, including if:
- We believe that you: (a) pose a security risk to, or may otherwise harm, Bonfire, the Bonfire Platform, or any user or third party; (b) may adversely impact the services, systems, or content of any other user; or (c) may subject Bonfire, or any user or other third party, to liability;
- Bonfire determines or reasonably suspects that you may have violated these Terms; or
- Bonfire has been notified by a third party that you have violated such third party’s terms and conditions in connection with your access to or use of the Bonfire Platform.
20.1. Governing Law; Arbitration
These Terms, all rights and obligations under these Terms, including matters of construction, validity and performance, and your use of the Bonfire Platform, will be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws provisions.
Except as specifically stated in these Terms, any dispute, claim, or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation, or validity of any provision of these Terms, or your use of the Bonfire Platform, and the determination of the scope or applicability of your agreement to arbitrate any such dispute, claim or controversy (an “Arbitrable Dispute”) will be resolved by arbitration in San Francisco County, California in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except that: (i) if you are a consumer (as defined under the JAMS Rules), you have a right to an in-person hearing in your hometown area, and (ii) the provisions contained in these Terms will govern over any conflicting rules which may now or hereafter be contained in the JAMS Rules. Any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction over the subject matter thereof. The arbitrator will have the authority to grant any equitable and legal remedies that would be available if any judicial proceeding were instituted to resolve an Arbitrable Dispute. The existence of any such arbitration and the terms of the Arbitrable Dispute will be kept confidential by the parties, except as may be required by Applicable Law.
The arbitrator will be mutually agreed upon by the parties. If the parties are unable to agree within 20 days following submission of the dispute to JAMS by one of the parties, JAMS will have the authority to select an arbitrator in accordance with the JAMS Rules.
No discovery other than an exchange of relevant documents may occur in any arbitration commenced under the provisions of these Terms. The parties agree to act in good faith to promptly exchange relevant documents. The arbitrator will be instructed to hold an up to 8 hour, 1 day hearing regarding the disputed matter within 60 days after its designation and to render an award no later than 10 days after the conclusion of such hearing, in each case unless otherwise mutually agreed in writing by the parties.
The final decision of the arbitrator will: (i) identify the prevailing party and state the amount of the award (the “Award Amount”), if any; (ii) include a reasonably detailed written explanation of the decision; (iii) be furnished to the parties in writing; (iv) constitute a conclusive determination of the issues in question, and will be binding upon the parties; (v) not be contested by the parties; and (vi) remain confidential unless otherwise agreed in writing by the parties, and an order with respect thereto may be entered in any court of competent jurisdiction.
The arbitrator will not have the power to alter, amend or otherwise affect the terms of these arbitration provisions or any other provisions contained in this Section or elsewhere in these Terms.
If you are a consumer (as defined under the JAMS Rules), remedies that would otherwise be available to you under Applicable Law will remain available under this arbitration clause, unless you retain the right to pursue such remedies in court.
If you are a consumer (as defined under the JAMS Rules) and you initiate arbitration against us, the only fee required to be paid by you is $250 (the approximate cost of court filing fees). All other costs will be borne by us, including any remaining JAMS Case Management Fee and professional fees for the arbitrator’s services. If we initiate arbitration against you and you are a consumer (as defined under JAMS Rules), we will pay for all costs associated with the arbitration. The parties are responsible for paying their own attorneys’ fees. For arbitrations outside of California, the arbitrator will have the authority to award attorney’s fees and costs to the prevailing party if such an award is allowed under Applicable Law. For arbitrations within California, the arbitrator will not have the authority to award attorney’s fees and costs to a claimant who does not prevail against us.
If you do not want to be bound by this arbitration provision, you may opt out. In order to opt out of this arbitration provision, you must notify us in writing that you do not want to resolve disputes with us by arbitration, and such notice should be delivered by mail to 780 Haight St., San Francisco CA 94117, Attn: Arbitration Opt-Out, within 30 days of the earlier of (a) the date you first access or use the Bonfire Platform; and (b) the date you click or tap any button, box, or other icon marked “I Accept,” “I Agree” or “OK” (or any similar term) in connection with these Terms.
You may not assign these Terms or delegate any of your rights or obligations under these Terms without the prior written consent of Bonfire. Any attempted assignment in violation of this Section will be void. We may assign these Terms or delegate any of our rights or obligations under these Terms without your consent. Subject to the foregoing limitations, these Terms will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
20.3. Copyright Infringement; DMCA
We will respond to notices of alleged copyright infringement on the Bonfire Platform that comply with Applicable Law. Such notices should be reporting via the process outlined in our Copyright Policy, which is hereby incorporated by reference into these Terms. We reserve the right to delete or otherwise disable access to any Creator Materials (or other Platform Content) that is alleged to be infringing, or to terminate or suspend accounts (without any refund) of users who repeatedly infringe.
We suggest that you consult your legal advisor before following the process outlined in our Copyright Policy.
You consent to electronic provision of all notices, communications, and disclosures (“Communications”) from us, including those required by Applicable Laws. You agree that your electronic consent will have the same legal effect as a physical signature. We may send Communications to you to the email address or phone numbers we have on file for you. You agree to keep all your contact information current. All Communications are considered received 24 hours after we deliver them to you. You may withdraw your consent to receive electronic Communications at any time by sending us a written request to firstname.lastname@example.org. Due to the nature of the Bonfire Platform, you will not be able to continue to use and/or access the Bonfire Platform without agreeing to electronic delivery of Communications, and if you elect to withdraw your consent to receive Communications electronically you will no longer have access to or be able to use the Bonfire Platform.
All notices, demands and other communications you provide to us must be in writing and must be sent by electronic mail to the following address: email@example.com (or to such other address as we may designate to you from time to time).
20.5. Relationship of the Parties
Nothing in these Terms will be deemed to create a joint venture, partnership, or agency relationship between the parties, or be deemed to authorize either party to incur any liabilities or obligations on behalf of, or in the name of, the other party.
20.6. Force Majeure
Bonfire will not be liable for any delay or failure to perform its obligations hereunder resulting from any cause beyond Bonfire’s reasonable control that makes performance impossible, including: fires; explosions; pandemics, epidemics or other spread of disease; floods; strikes; work stoppages or slowdowns or other industrial disputes; accidents; riots or civil disturbances; acts of governmental authorities; industry-wide material shortages, power failures, or communication line interruptions; disruption or damage to, or failure of, the Internet or other computer networks, third party information technology systems or services beyond Bonfire’s reasonable control. You acknowledge that Bonfire does not and cannot control the flow of data through the Internet.
20.7. U.S. Government Rights
If the software in connection with the Bonfire Platform is construed as “commercial computer software”, as that term is defined in 48 CFR 2.101, all U.S. government end users acquiring access to such software may only do so with the rights set forth in these Terms, in accordance with 48 CFR 12.212(b) and/or 48 CFR 227.7202-1(a) and 48 CFR 227.7202-4, as applicable.
20.8. Parental Controls
We hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that we do not endorse any of the products or services listed on such site.
No delay, neglect or forbearance on the part of either party in enforcing any term of these Terms will be deemed to be a waiver. All waivers must be in writing and must be signed by the party against which it is sought to be enforced to be effective.
The invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of any other provision hereof, and it is the intent and agreement of the parties that these Terms will be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting another provision that is legal and enforceable and that achieves the same objective.
20.11. Headings; Interpretation
Any heading, caption or section title contained in these Terms is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in these Terms will be construed as if followed by the phrase “without limitation.”
20.12. Third Party Beneficiaries
These Terms do not create any third party beneficiary rights in any individual or entity that is not a party to these Terms, except that the Bonfire Entities are express third-party beneficiaries of these Terms.
20.13. Entire Agreement
These Terms, including any terms and conditions incorporated into these Terms, are the entire agreement between you and Bonfire relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Bonfire relating to such subject matter.