HYPEFIRE Email Marketing & SMS Tool by FireLizard {TheFireLizard.com} HYPEFIRE Terms of Use

LICENSE AGREEMENT FOR THE USE OF THE FIRELINE PLATFORM

This license agreement (the “Agreement”) is entered into between HypeFire {HypeFire.EmlSend.com}, owned by KinerkTube Company (registered trademark mark) with registered office in Sonoma County, California, and the Client, identified with the information provided by completing the Registration Form as below defined (the “Customer”).

HypeFire and the Client individually also the “Party”, and collectively, the “Parties”.

WHEREAS:

I. HypeFire is a company that operates in the digital marketing and digital communications industry.

II. HypeFire has developed and designed a Software as a Service (SaaS) known as the HypeFire Platform, which enables users to create and send emails, SMTP, and SMS, as well as create and publish landing pages through a drag-and-drop user interface.

III. The Client hereby states to know and have carefully checked the features of the FireLine Platform and to consider them suitable for its needs.

IV. The HypeFire Platform is a tool reserved for professional users, and the Client undertakes to use it exclusively in connection with its professional business and for purposes related to it.

V. These recitals, the schedules, and the external links (e.g., the Privacy Policy, the Pricing Page, and the Support Pages, as better defined below) to the Agreement constitute an integral and substantive part hereof.

NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:

SECTION 1. DEFINITIONS

The following terms in this Agreement shall have the meaning attributed to them under this clause when capitalized. Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.

SECTION 3. EMAIL AND SMS USE POLICY

3.1. Privacy Legal Basis

The Client acknowledges and accepts that the essential requirement for sending emails and SMS is the existence of a suitable privacy legal basis in accordance with the data protection law in force from time to time. HypeFire may, in case of a breach of the terms under this section, block the Client’s account and suspend access to and use of the HyepFire Platform or cancel a planned campaign without the right to restore the Email and SMS credits for the Client. In such cases, the Client undertakes to provide HypeFire with relevant explanations and everything deemed appropriate by HypeFire to verify that the sending of messages is carried out by the Client in compliance with the data protection laws in force from time to time. The existence of an appropriate privacy legal basis concerns both the recipients of the messages sent via email and the recipients of SMS messages.

3.2. Prohibited Email and SMS Contents

The Client declares awareness of and agrees that HypeFire expressly prohibits:

i. The use, purchase, or lease of mailing lists from external suppliers, even if consent has been gathered by third parties.

ii. The use of mailing lists gathered through co-registration and/or data-sharing activities and any other similar situation in which the Client does not gather the consent directly.

iii. The use of applications/functions such as SMTP+, SMTP Relay, Fast Email, Instant SMTP, WebService/API to send bulk messages with commercial/marketing/promotional content provided by third parties, as well as DEM, EDM, direct emailing, and direct email marketing.

iv. The mailing of material falling under specific categories, including but not limited to obscene material, offensive material, material contrary to public order, material that harms third-party rights, material protected by copyright, illegal material, material inciting violence or hate, and materials introducing viruses, trojans, or other damaging or illegal software.

In all such cases, HypeFire reserves the right to take necessary actions to address violations, including reducing mailing speed, blocking access to the FireLine Platform, or declaring the automatic termination of the Agreement due to a breach.

3.3. IP Blacklisting

If the Client is responsible for the use of the service for unlawful purposes and/or spamming, causing damage to the reputation of FireLine, and/or functioning of its service, HypeFire may hold the Client solely responsible for the material breach. The Client shall indemnify and hold harmless FireLine from any liability in such regard. HypeFire reserves the right to take action to obtain compensation for damages caused by such conduct.

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**SECTION 12. MISCELLANEOUS**

12.1. **Governing Law and Jurisdiction.** This Agreement shall be governed by and construed in accordance with the laws of [Jurisdiction], excluding its conflicts of law principles. The Parties agree that any disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of [Jurisdiction].

12.2. **Notices.** Any notices or communications required or permitted by this Agreement shall be in writing and shall be deemed given when delivered personally or by an internationally recognized courier service that provides written confirmation of delivery, or three (3) days after being mailed by certified or registered mail, postage prepaid, return receipt requested, to the addresses of the Parties set forth in this Agreement or to such other address as either Party may designate by notice to the other Party.

12.3. **Assignment.** This Agreement may not be assigned by either Party without the prior written consent of the other Party, except that HYPEFIRE may assign this Agreement without consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any assignment in violation of this Section shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.

12.4. **Entire Agreement.** This Agreement constitutes the entire understanding between HYPEFIRE and the Client concerning the subject matter hereof and supersedes all prior and contemporaneous agreements, whether written or oral, between HYPEFIRE and the Client relating thereto.

12.5. **Amendments.** No amendment or modification of this Agreement shall be valid or binding upon the Parties unless made in writing and executed by both HYPEFIRE and the Client.

12.6. **Severability.** If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

12.7. **Waiver.** No waiver by either HYPEFIRE or the Client of any term or condition of this Agreement or any breach thereof, in any one instance, shall be deemed a waiver of such term or condition or any subsequent breach thereof.

12.8. **Headings.** The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.

12.9. **Counterparts.** This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, in duplicate, by their duly authorized representatives, as of the Effective Date.

HYPEFIRE

By: KinerkTube (FireLizard)
Robert K. Founder & CEO
DATE

[CLIENT NAME]

By: [Authorized Signatory]
[Name and Title]
[Date]

**SECTION 12. MISCELLANEOUS – HYPEFIRE**

12.1. **Marketing and Publicity.** HYPEFIRE hereby grants TheFireLizard, our Parent company KinerkTube or any sister companies including our agency partners at Acumbamail the right to use HYPEFIRE’s name and logo in presentations, marketing materials, client lists, financial reports, and website for the purpose of promoting the services provided under this Agreement. Any use of HYPEFIRE’s logo, trade name, or distinctive marks by TheFireLizard, other than as expressly permitted under this Agreement, requires prior written authorization from HYPEFIRE.

12.2. **Confidential Information.** Both Parties acknowledge their access to each other’s confidential information, including business plans, technology, and products, related to the services under this Agreement. Each Party agrees not to use or disclose the other Party’s confidential information except as required by law or with written consent. Information not deemed confidential includes that which is publicly known, independently developed, or obtained from a source not bound by confidentiality.

12.3. **Assignment.** FireLizard is entitled to assign or transfer its rights and obligations under this Agreement to third parties. You may assign and transfer its rights and obligations under this Agreement with prior written consent from TheFireLizard. In case of assignment by you without proper consent, TheFireLizard retains the right to take action against HYPEFIRE if the transferee fails to fulfill obligations.

12.4. **Amendments.** TheFireLizard reserves the right to modify or amend any terms of this Agreement. Amendments will be effective upon publication on the TheFireLizard website or email notification to HYPEFIRE. HYPEFIRE’s continued use of TheFireLizard services after amendments constitutes acceptance. FIRELINE has the right to terminate the Agreement if it does not accept changes within 10 days from notification.

12.5. **Validity of Contractual Clauses.** The clauses of this Agreement are deemed in force and accepted by HYPEFIRE in their entirety, even during free or temporary use of Acumbamail’s services.

12.6. **Tax Costs.** HYPEFIRE shall bear tax costs arising from the performance of this Agreement.

12.7. **Governing Law and Jurisdiction.** This Agreement, including services provided by our partners at Acumbamail to HYPEFIRE, is governed by and interpreted in accordance with Spanish law. The Parties agree that the Court of Ciudad Real shall have exclusive jurisdiction over any dispute concerning the validity, effectiveness, interpretation, and performance of this Agreement.

12.8. **Entire Agreement.** This Agreement, along with its integral parts and external links, supersedes all previous agreements, understandings, and negotiations between the Parties regarding the subject matter herein.

12.9. **Waiver.** No waiver by any Party of any provisions hereof shall be effective unless explicitly set forth in writing and signed by the waiving party. No failure to exercise any rights shall constitute a waiver, nor preclude further exercise of such rights.

12.10. **Electronic Form.** The Parties agree that words in electronic form shall be deemed “writing,” and electronic evidence shall be admissible in any court or quasi-judicial proceedings.

12.11. **Severability.** If any clause of this Agreement is declared null and void or unenforceable, the remaining clauses shall remain valid and effective between the Parties.

12.12. **Headings.** Headings are for reference purposes only and shall not affect the interpretation of this Agreement.

12.13. **Feedback.** HYPEFIRE may provide suggestions, comments, or feedback (Feedback) to our partners: Acumbamail. By doing so, HYPEFIRE grants Acumbamail a license to use, reproduce, and improve the Feedback without compensation.

12.14. **Notice.** Any notice to HYPEFIRE will be effective when sent to the last email or physical address provided by HYPEFIRE or when posted on TheFireLizard.com website.

12.15. **Conflicts.** In case of conflict between provisions of the Agreement, Data Processing Agreement, Additional Instructions, and external links, the following order of precedence applies: (a) Additional Instructions; (b) Data Processing Agreement; (c) Agreement; (d) Orders; and (e) external links.

**ANNEX A – DATA PROCESSING AGREEMENT**

I apologize for the oversight. Here is the revised version tailored for FIRELINE:

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12. HYPEFIRE CONTACTS
12.1. HYPEFIRE Contacts. The Client may contact HYPEFIRE with regard to all aspects of this Data Processing Agreement through:
a) ad***@***********rd.com; or
b) the email addresses used by HYPEFIRE during provision of the Processor Services to receive certain notifications from the Client concerning this Data Processing Agreement.

13. MISCELLANEOUS
13.1. Infringements of rules and regulations. Any provision of the Agreement, the Data Processing Agreement, and/or the Additional Instructions in conflict with European and National Legislation shall be deemed not to be present herein and shall be replaced in its entirety by the provision effectively infringed if it cannot be otherwise resolved through an agreement between the Parties.

13.2 Existing agreements. The parties agree that this Data Processing Agreement shall replace any existing data processing agreement or similar document that the parties may have previously entered into in connection with the Service.

14. JURISDICTION
14.1. Jurisdiction. In the event of a dispute regarding the execution or interpretation of this Data Processing Agreement, the parties assign exclusive jurisdiction to the Court established by the Agreement, expressly waiving any other provisions of international law or convention.

Appendix 1: Details of Data Processing
Nature and Purpose of Processing
The provision of the FIRELINE Platform and of the Services.

DURATION OF PROCESSING
The duration of processing shall include the entire Agreement Term plus the term until all Client Personal Data is deleted by HYPEFIRE in accordance with the Data Processing Agreement and the provisions of the Agreement.

CATEGORIES OF PERSONAL DATA AND CATEGORIES OF DATA SUBJECTS
Depending on the Processor Services, Client Personal Data may include the following:

Categories of Data Subjects: Recipients of communications sent by Client through the Processor Services and Client’s subscribers and other individuals about whom the Client has given us information or has otherwise interacted with a Client via the HYPEFIRE and TheFireLizard.com Platform.

Categories of Personal Data: Data collected by tracking technology and devices if not disabled by the Client (cookies data, online navigation data, location data, browser data). Common identification data (e.g., name, surname, e-mail address, telephone number, images, address, title, contact details)

CATEGORIES OF PERSONAL DATA AND CATEGORIES OF DATA SUBJECTS
Special Category of Personal Data processed (if applicable):

HYPEFIRE does not want to, nor does it intentionally, collect or process any Special Category of Personal Data as defined under Article 9 of the GDPR in connection with the provision of the HYPEFIRE Platform and of the Services.

Appendix 2: Security measures
As from the Effective Date, HYPEFIRE shall implement and maintain the Security Measures set out at the following links:

– [Security Measures Link 1] (https://thefirelizard.com/gdpr-hypefire/)
– [Security Measures Link 2] (https://thefirelizard.com/gdpr-infraestructura/)

FIRELINE may periodically update or amend the following Security Measures, provided that such updates and amendments do not lead to a deterioration of the overall security of the Processor Services or, in any case, to a decrease in the security level agreed.

Appendix 3: Subprocessors
Part of the activities that allow FIRELINE to provide the Processor Services may be delegated to Subprocessors:

| Company | Processor Services or description of subcontracted activities | Place of establishment | Transfer procedure (where applicable) |
|———————–|—————————————————————————–|————————|————————————–|
| Agile Telecom S.p.A. | Provision of SMS traffic routing service and text messages delivery service to end users | Italy | N/A |
| Stackscale S.L. | Hosting services | Spain | N/A | FireLizard Hosting located in Germany | FireLizard HQ Homebase: California, United States |