Effective Date: June 23, 2021

TERMS OF SERVICE

PLEASE READ THIS AGREEMENT CAREFULLY.  IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR USE OF THE SITE AND SERVICES PROVIDED BY FIRSTLYSM.  THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTES YOU HAVE WITH US AND WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION.

By accessing, browsing, or using any Services, as defined below, of FirstlySM (“us,” or “we,” or “our”) you agree to comply with and be bound by these Terms of Service (“Terms of Service”) and our Privacy Policy. These Terms of Service apply to all of our internet properties, including, without limitation www.firstly.com (the “Site”); mobile websites, microsites, mobile applications, or other online service where these Terms of Service are posted or accessible; Firstly’s profiles on any social media site;  and any other digital services or properties operated or used by Firstly from time to time (collectively referred to as the “Services”). These Terms of Service apply whether or not you are registered with the Site. All references to “you” or “your,” as applicable, mean the person who accesses, browses, and/or uses the Site or the Services in any manner.

If you do not agree to the Terms of Service or Firstly’s Privacy Policy, you must immediately terminate use of the Services. The Services are available only to individuals who can enter into legally binding contracts under applicable law. By accessing, browsing or using the Services you represent and warrant that you are able to enter into a legally binding contract under applicable law.

Changes to the Terms of Service

We may revise and update these Terms of Service from time to time at our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. Your use of the Services signifies your acceptance of all the terms and conditions posted at the time of your use. We encourage you to review these terms and conditions frequently. No revisions to these Terms of Service, including dispute resolution provision set forth below, shall apply to a controversy or claim of which a party had actual notice on or before the date of any such revision.

Firstly Policies; Additional Terms and Conditions

Firstly’s Privacy Policy is incorporated herein by reference.  For information about Firstly’s data protection practices and our use and protection of personal information, please read Firstly’s Privacy Policy.

Accessing the Services and Account Security

We reserve the right to withdraw or amend the Services, and any service or material we provide, in our sole discretion without notice. We will not be liable if for any reason all, or any part, of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services or the Site, or to the entire Services or Site, from users.  We also reserve the right to deny access to any person who violates these Terms of Service. We may update the content on the Services or Site from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Services may be out of date at any given time, and we are under no obligation to update such material.

You are responsible for ensuring that all persons who access the Services through your internet connection are aware of these Terms of Service and comply with them.

Intellectual Property Rights

The content of the Services includes all information, content, services and software displayed on, transmitted through, or used in connection with the Services  and includes, without limitation, (i) Firstly’s trademarks, service marks, logos, brands, and brand names, trade dress and trade names and other distinctive identification (collectively “Firstly Marks”); (ii) information, data, materials, interfaces, computer code, databases, products, services, software applications, and tools, texts, images, photographs, audio and video material, including podcasts, and artwork; and (iii) the design, structure, selection, arrangement, compilation, assembly, coordination, expression, functionalities, applications, look and feel, and arrangement of any content contained in or available through the Services (the items identified in subsections (i) through (iii) shall be collectively referred to herein as “Firstly Content”). Firstly Content is the property of the Firstly, its licensors, sponsors, partners, advertisers, content providers or other third parties and is protected by law including, but not limited to, United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. Except as permitted in the “License Grant” section below, the use, reproduction, transmission, distribution, sale, publication, broadcast, circulation, or dissemination of Firstly Content by you, or by you through any other person or entity, for any purpose other than as expressly provided for on the Site or in the Services or as permitted in these Terms of Service is prohibited unless express written consent is separately obtained from the Firstly, or owner of such content if Firstly is not the owner. Any use of Firstly Marks without Firstly’s express written consent is strictly prohibited. You may not alter, delete, obscure, or conceal any copyright or other notices appearing in Firstly Content, including any such notices appearing on Firstly Content you are permitted to use, download, transmit, display, print, or reproduce from the Services.

License Grant

You are granted a personal, revocable, limited, non-exclusive, non-transferable license to access, browse, and use the Services online, conditioned on your continued acceptance of, and compliance with, these Terms of Service and Firstly’s Privacy Policy.

License Restrictions

Without limitation, you may not

  • Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
  • Delete or alter any of Firstly Marks or copyright, trademark or other proprietary rights notices from copies of Firstly Content.

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Services in breach of the Terms of Service, your right to use the Services will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by Firstly. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark and other laws.

Prohibited Uses

You may use the Services only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Services:

  • In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
  • To send, knowingly receive, upload, download, use or reuse any material which does not comply with these Terms of Service.
  • To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam” or any other similar solicitation.
  • To impersonate or attempt to impersonate a Firstly employee, another user or any other person or entity (including, without limitation, by using email addresses (or screen names) associated with or intentionally similar to any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Firstly or users of the Services or expose them to liability.
  • Inappropriately use, attempt to gain unauthorized access to, or attempt to interfere with the proper working of the Services, whether by manual process, automatic device, or otherwise.

Ideas You Pitch to Us

If you share or pitch ideas, information, suggestions, proposals, invitations, instructions, or recommendations about the way we do business or about content like stories, photos, videos, and the like with Firstly (hereinafter, a “Pitch”), please keep in mind that it is subject to these Terms of Service, including, without limitation, the “Intellectual Property Rights” section above.

Moreover, unless we specifically tell you in writing that we want to move forward with your Pitch and that we agree to pay you a specific rate (or to link to your website) in writing, you are not entitled to any compensation for your Pitch. Additionally, we may already have ideas or plans in progress that are similar to yours, and we are not responsible for any similarities between your Pitch and our current or future content or actions; any such similarities are purely coincidental.

If you’re interested in contributing to Firstly, please visit us at partners@firstly.com for more information on how to submit your idea.

Monitoring and Enforcement

Without limiting the foregoing, we have the right, but not the obligation, to monitor and take any action as set forth in these Terms of Service and Firstly’s Privacy Policy, and to report any violation of these Terms of Service to government, regulatory or law enforcement authorities and to fully cooperate with any such request, any subpoena, court order, or legal process requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS FIRSTLY  AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY FIRSTLY AND ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

Copyright Infringement and Digital Millennium Copyright Act Notice and Procedure

Firstly respects the intellectual property of others, and we ask our users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov, Firstly will respond expeditiously to clear notices of alleged copyright infringement that are reported to Firstly’s designated copyright agent identified below. As part of our response, Firstly will follow the procedures outlined herein and in the DMCA, and we may remove or disable access to material residing on the Site or available through the Services that is claimed to be infringing. We may also document notices of alleged infringement on which we act.

If we remove or disable access to allegedly infringing material, we will make a good-faith attempt to contact the person who submitted the affected material or content so that they may make a counter notification in accordance with Sections 512(g)(2) and (3) of the DMCA.

Notice Requirements

For your notice of infringement to be valid under the DMCA, you must provide the following information, in writing:

  1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  2. Identification of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  3. A description of where the material that you claim is infringing is located on the Services (please provide a link, if possible);
  4. Your address, telephone number and email address, or other information reasonably sufficient to permit us to contact you;
  5. If possible, information sufficient to allow Firstly to notify the owner/administrator of the allegedly infringing content;
  6. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
  7. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Notice for claims of copyright or intellectual property infringement must be sent to Firstly’s DMCA Agent at the following mailing address or email address (email is preferred):

By mail:

Firstly
ATTN:  Legal Department
711 Third Avenue, 6th Floor
New York, New York 10017

By email: support@firstly.com with “DMCA” in the subject line

Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material is infringing your copyrights. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney.

Linking to the Site and Social Media Features

You may link to our Site, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, promotion or endorsement on our part, unless you first obtain our express written consent.

The Site may provide certain social media features that enable you to:

  • Link from your own or certain third-party website to certain content on the Site.
  • Send e-mails or other communications with certain content, or links to certain content, on the Site.
  • Cause limited portions of content on the Site to be displayed or appear to be displayed on your own or certain third-party website.

You may use these features solely as they are provided by us and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features, including the host sites’ terms of use.

Subject to the foregoing, you must not:

  • Establish a link from any website that is not owned by you.
  • Otherwise take any action with respect to the materials on the Site that is inconsistent with any other provision of these Terms of Service or the Firstly’s Privacy Policy.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with Firstly Content Standards set out in these Terms of Service.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.

We may disable all or any social media features and any links at any time without notice in our discretion.

Geographic Restrictions

Firstly is based in the State of New York in the United States. We provide the Services for use only by individuals while they are physically located in geographic regions outside of the European Union (“EU”). We make no claims that the Services, the Site, or any of their content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside of the United States, you do so on your own initiative and are responsible for compliance with local laws. Additionally, by using the Services and agreeing to the Terms of Service, you also agree to indemnify Firstly for any damages caused or related to your use of the Services from outside the United States.

Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site or other platforms used in the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE ARE NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT OR AFFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE SITE, OR ON ANY WEBSITE LINKED TO THE SITE.

YOUR USE OF THE SERVICES, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, THEIR CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES, THEIR CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES  WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation on Liability

IN NO EVENT WILL FIRSTLY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE, THE SERVICES OR OTHER LINKED WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

IN THE EVENT YOU ARE DISSATISFIED WITH, OR DISPUTE, THESE TERMS OF SERVICE, THE SITE, THE SERVICES AND/OR FIRSTLY CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE YOUR USE OF THE SITE AND/OR THE SERVICES, EVEN IF THAT RIGHT OR REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE. YOU CONFIRM THAT FIRSTLY HAS NO OTHER OBLIGATION, LIABILITY OR RESPONSIBILITY TO YOUR OR ANY OTHER PARTY.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless Firstly, if applicable, its parent, subsidiaries, affiliates, licensors and service providers, and its and each of their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Service.  We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.

Dispute Resolution

By using the Services, you agree that Firstly has the right to submit any controversy or claim (a “Dispute”) that either party may have against the other to non-binding mediation before you can initiate any lawsuit. If Firstly chooses to submit a Dispute to mediation, the parties shall equally share in paying for the costs of the mediator, but the parties agree to pay their own attorney fees and costs prior to and at the mediation.

If mediation is unsuccessful, or if Firstly chooses not to mediate, Firstly can do any of the following with regard to a Dispute: (i) submit the Dispute to binding arbitration in accordance with the rules of the American Arbitration Association, then in effect; (ii) compel arbitration (if you initiate a legal proceeding); or (iii) file, defend or otherwise participate in a lawsuit regarding the Dispute, without arbitrating. The prevailing party in any arbitration or litigation shall be entitled to recover reasonable attorneys’ fees and costs (except for arbitrator costs). Notwithstanding anything else contained herein, Firstly shall be entitled to seek injunctive or equitable relief at any time in the state or federal courts in the Western District of New York and any other court with jurisdiction over the parties.

In the event that a Dispute is arbitrated, you understand and agree: there is no judge or jury in arbitration and review is limited; the arbitrator’s decision and award is final and binding, with limited exceptions; judgment on the award may be entered in any court with jurisdiction; if an in-person hearing is required as part of an arbitration proceeding initiated or allowed by Firstly, then it will take place in Pinellas County, Florida (however, the parties may mutually agree on an alternative location); Firstly will not be responsible for paying any fees associated with your travel or other costs incurred to attend an arbitration hearing; the fees and expenses of any arbitrator(s) will be borne equally by the parties; Florida law will also apply during any arbitration related to a Dispute.

By using the Services, you affirm, agree, and warrant that any Dispute will be arbitrated or litigated only on an individual basis and will not be consolidated with any other proceedings that involve any claims or controversy of another party, including any class actions.

Governing Law

These Terms of Service and all matters regarding your use of the Services shall be governed by, construed in accordance with, and enforced under the laws of the State of New York, without regard to its choice of law principles.

Waiver and Severability

Firstly’s failure to exercise or enforce any right or provision in these Terms of Service shall not constitute a waiver of such right or provision.

If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.

Entire Agreement

The Terms of Service, together with any revision, any Additional Terms and Conditions, any terms or conditions incorporated by reference, and if applicable any click-through agreement, constitute the sole and entire agreement between you and Firstly with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services.