Revised: December 16, 2021
PLEASE REVIEW THESE TERMS OF SERVICE, THESE TERMS ARE A BINDING LEGAL CONTRACT BETWEEN YOU AND FULCRUM360 (“TERMS”). THESE TERMS GOVERN YOUR USE OF THE FULCRUM360 APP AND FULCRUM360 SERVICES THAT LINK TO THESE TERMS. BY USING THE FULCRUM360 APP OR FULCRUM360 SERVICES, YOU ACCEPT THESE TERMS AND AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE READ THESE TERMS, YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS THEN YOU MAY NOT USE THE FULCRUM360 APP OR THE FULCRUM360 SERVICES.
WE MAY MODIFY, UPDATE OR DELETE PROVISIONS OF THESE TERMS BY POSTING THOSE CHANGES ON THE FULCRUM360 APP. YOUR CONTINUED USE OF THE FULCRUM360 APP AND/OR FULCRUM360 SERVICES AFTER SUCH CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF ANY SUCH CHANGES TO THESE TERMS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF SERVICE.
In these Terms, “Fulcrum 360” “We”, “Us” or “Our” will refer to Fulcrum 360, and the terms “You” or “Your” or “Customer” will refer to you. You and Fulcrum 360 are each individually referred to as a “Party” and collectively as “Parties.”
Article I. Definitions
“Authorized User or User” means You and any of Your employees, consultants, contractors or agents authorized to access and use the Fulcrum360 app on behalf of Your business, in each case subject to such person’s agreement to be bound by these Terms.
“Fulcrum 360 Materials” means any documentation, user guides, or other similar materials provided by Fulcrum 360 to You in connection with Your use of the Fulcrum 360 App or Services.
“Fulcrum 360 App” and “Fulcrum 360 App and Services” means any of the Fulcrum 360 set of SaaS solutions that are developed, operated, and maintained by Fulcrum 360 (and its third party service providers) and that are subscribed to through a Fulcrum 360 branded or controlled website or that we otherwise make available to You that includes a link to or makes reference to these Terms.
“Professional Services” means any implementation, training or other professional services provided by or on behalf Fulcrum 360 to You pursuant to the terms of a Subscription Agreement.
“Sensitive Data” means (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial; (d) account passwords, mother’s maiden name, or date of birth; (e) any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection.
“Subscription” means Your right to use the Fulcrum 360 App or Fulcrum 360 App and Services and Professional Services that You have subscribed to or that we otherwise make available to You.
“Subscription Agreement” means these Terms and any online or written subscription order form or contract for the Fulcrum 360 App, Fulcrum 360 App and Services or for Professional Services accepted by You either during an online subscription process or separately signed by You and submitted to Fulcrum 360, and any future purchase order, contract, or order form that makes reference to these Terms.
“Subscription Term” means the use term for the Fulcrum 360 App or Services pursuant to Your Subscription Agreement and any additional renewals of such term.
“Your Data” means registration information and other information relating to Your Authorized Users, and any similar data submitted by You, the persons to whom the data relates, or by Authorized Users to the Fulcrum 360 App or Services.
Article II. Your Account, Use Rights, Responsibilities and Restrictions
2.1 Your Fulcrum 360 Account.
You must be at least 18 years of age to purchase or use the Fulcrum 360 App and Services. To use the Fulcrum 360 App and Services You will be asked to register for an account. When You create an account for the Fulcrum 360 App and Services, You must provide accurate account information and promptly update this information if it changes. By creating a Fulcrum 360 account, You consent to receive electronic communications from Fulcrum 360, via email, telephone (either by a live person, automatic dialer, pre recorded message or a combination of the foregoing) including marketing messages, newsletters, and other information regarding Fulcrum 360 App and Services and products. Further, You consent to receive such phone calls at the telephone number You entered on our website. You do not need to agree to this provision in order to use the website or purchase the Fulcrum 360 App and Services and if You would like us not to contact You by telephone, please email: [email protected] You may always opt-out of receiving future commercial emails and marketing communications from Fulcrum 360 by clicking on the “unsubscribe” link within any emails received. Please note that Your request not to receive unsolicited commercial emails from Fulcrum 360 will not apply to messages that You request or that are transactional in nature as they are related to Your Fulcrum 360 Subscription. For example, Fulcrum 360 may contact You concerning any services purchased, requested or received from Fulcrum 360, even if You opt out of receiving unsolicited commercial messages. You are responsible for all activity under Your account using Your credentials. You are responsible for maintaining the security of Your account. Do not share Your account passwords or login and promptly notify Fulcrum 360 of any known or suspected unauthorized use or breach of the security of Your account.
2.2 Account Ownership.
Fulcrum 360 has the right to rely on the account information You provide to us to determine account ownership. In cases where account information is inconsistent We will require You to resolve the matter. You agree that You will resolve any account-related disputes directly with the other party claiming the account and use channels outside of Fulcrum 360. Fulcrum 360 is under no obligation to resolve disputes between individuals or entities regarding ownership of a Fulcrum 360 account. In the event a dispute arises on Your account as to who at Your business has authority to act or manage Your account and Fulcrum 360 is not promptly provided with written instructions from the interested parties associated with Your account that fully resolves the dispute, You acknowledge and agree that; (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, Fulcrum 360 may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of Your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, Fulcrum 360 may assume that the person or entity that has been making payments on Your account has the authority to manage the account.
2.3 Use Rights; Responsibilities, Restrictions.
Subject to these Terms, Fulcrum 360 grants to You during the Subscription Term the non-transferable (except as permitted below), non-exclusive right to permit Your Authorized Users to access and use the Fulcrum 360 App and Services (and any Fulcrum 360 Materials provided to You) to allow You access to aircraft parts and component information, and other related business functions included in the Fulcrum 360 App and Services, subject to the following restrictions: (i) except as expressly permitted herein or in a separate partner agreement between You and Fulcrum 360, YOU MAY NOT LICENSE, SELL, RENT, LEASE, TRANSFER, ASSIGN, DISTRIBUTE, DISPLAY, HOST, OUTSOURCE OTHERWISE COMMERCIALLY EXPLOIT OR MAKE THE FULCRUM 360 APP OR SERVICES OR THE FULCRUM 360 MATERIALS AVAILABLE TO ANY THIRD PARTY; (II) YOU MAY NOT MODIFY, MAKE DERIVATIVE WORKS OF, DISASSEMBLE, REVERSE COMPILE, OR REVERSE ENGINEER ANY PART OF THE FULCRUM 360 APP OR SERVICES OR FULCRUM 360 MATERIALS (PROVIDED THAT REVERSE ENGINEERING IS PROHIBITED ONLY TO THE EXTENT SUCH PROHIBITION IS NOT CONTRARY TO APPLICABLE LAW), OR ACCESS OR USE THE FULCRUM 360 APP OR SERVICES OR FULCRUM 360 MATERIALS IN ORDER TO BUILD A SIMILAR OR COMPETITIVE PRODUCT OR SERVICE; (iii) Your use of the Fulcrum 360 App and Services (in terms of number of Authorized Users, etc.) shall conform with the restrictions set forth in the Subscription Agreement for the level of Subscription purchased by You (Fulcrum 360 may monitor Your compliance with these limits and if it detects overuse upgrade You to the appropriate higher subscription or user level) and You shall not manipulate data in an attempt to circumvent these limits; (iv) Your use of the Fulcrum 360 App and Services must not cause undue strain or stress on the Fulcrum 360 network through excessive API calls or other non-standard use; and (v) Your use of the Fulcrum 360 App and Services must comply with any separate Fulcrum 360 Acceptable Use Policy posted on the Fulcrum 360 website (https://Fulcrum 360.com/legal) as updated by Fulcrum 360 from time to time (vi) You will be responsible for each Authorized User’s use of Your Fulcrum 360 App and Services and for their compliance with these Terms.
2.4 No Legal or Financial Advice.
You acknowledge that Fulcrum 360 may provide You with information, frequently asked questions or best practices regarding aircraft parts and components, aircraft installation, eligibility, airworthiness, traceability, etc. Information and data provided by Fulcrum 360 or any of its affiliations does not constitute installation, eligibility or airworthiness certification. In all cases, aircraft maintenance records must contain an installation certification issued in accordance with the national regulations by the user/installer before parts may be installed or the aircraft flown. Refer to your region’s national regulations of an airworthiness authority of the country in which the work is being performed for all installation regulations. Fulcrum 360 and its affiliates make no claim to installation eligibility. We do not warrant or guarantee that use of or compliance with such information will be sufficient to comply with Your obligations under these Terms, applicable law or with third party requirements. Although we have no obligation to monitor Your use of the Fulcrum 360 App or Services, we may prohibit any use of the Fulcrum 360 App or Services that we believe may be in violation of these Terms, applicable law, and any other relevant use documentation and restrictions made available to You. In no case, will the foregoing make Us responsible or liable for compliance with any such laws or obligations, for which You remain solely responsible and liable.
2.5 Technical Support.
During the Subscription Term, You will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and other technical support resources for the Fulcrum 360 App and Services that may be offered by Fulcrum 360 from time to time.
2.6 Intellectual Property Rights.
Your subscription is a right of access to and use of an online product, the Fulcrum 360 App and Services. You agree that You receive only a limited right to use the Fulcrum 360 App and Services and irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to You under this Agreement. You acknowledge and agree that Fulcrum 360 retains all proprietary rights in and to the Fulcrum 360 App and Services, the Fulcrum 360 Materials, the Fulcrum 360 website (Fulcrum360.com) which we may update from time to time. Fulcrum 360 also retains all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Fulcrum 360 App and Services and Fulcrum 360 Materials (including application development, business and technical methodologies, and implementation and business processes, used by Fulcrum 360 to develop or provide the Fulcrum 360 App and Services or Fulcrum 360 Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted to You under these Terms, You do not acquire any interest in the Fulcrum 360 App and Services or Fulcrum 360 Materials. Accordingly, You do not have any right to obtain a copy of the software that supports any Fulcrum 360 App and Services and that Fulcrum 360 at its option may make updates, bug fixes, modifications or improvements to the Fulcrum 360 App and Services from time-to-time.
Fulcrum 360’s intellectual property also includes Our user interface display and usability platform comprising part of the layout, color scheme, HTML pages and source code, etc. You are expressly prohibited from using these for any purpose outside of the intended design and implementation of Your authorized use of the Fulcrum 360 App and Services. Any replication or use of Fulcrum 360 intellectual property for any purpose designed or intended to compete with Fulcrum 360 App and Services is strictly prohibited.
You agree that Fulcrum 360 can use and disseminate any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Authorized Users relating to the Fulcrum 360 App and Services or the Fulcrum 360 Materials for any purpose without restriction, obligation or compensation to You. Such information is non-confidential and will become the sole property of Fulcrum 360 and will not be considered Your Confidential Information.
2.7 Free Trial.
If we offer You a free trial, the specific terms of Your free trial will be provided in the marketing materials describing the particular trial or at registration. We reserve the right to modify or terminate free trials at any time, without notice and in our sole discretion. At the end of Your free trial, or if You exceed any limits described on the applicable fee schedule You will be subject to fees in accordance with any applicable free trial terms. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding on You.
2.8 Changes to the Services.
Fulcrum 360 reserves the right to modify, add to, discontinue, and/or retire any Fulcrum 360 App and Services and/or any feature of a Fulcrum 360 App and Services at any time. We will make reasonable attempts to provide You with notice of such modifications by posting them on our website. We have no obligation to provide direct notice to You of any such changes. If You object to such change, Your sole remedy shall be to terminate the Fulcrum 360 App and Services pursuant to Article VI below. If we discontinue any Service You are using in its entirety, we will make efforts to provide You with advance notice and an opportunity to cancel your Fulcrum 360 account.
2.9 Alpha, Beta and Pre-Release.
Fulcrum 360 may also provide You with access to features or services that are identified as alpha, beta or pre-release. You understand that such services are still in development, may have bugs or errors, may be feature incomplete, may materially change prior to a full commercial launch, or may never be released commercially. Despite any other provision of this Agreement, any use of or reliance on alpha, beta or pre-release features or services is done at Your own risk and is provided “As Is” and without warranty of any kind, and the Fulcrum 360 indemnity in Section 7.4d does not extend to such alpha, beta or pre-release features or services. Alpha, beta, or pre-release features and services may be subject to additional terms made available to You at the time you access such features and services, and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding on You.
2.10 Suspension of Services.
In addition to suspension of the Services for non-payment of fees as described in Section 4.3 (Non-Payment; Other Suspension Rights), We may also suspend the Services immediately upon notice for cause if: (i) You violate (or give us reason to believe You have violated) these Terms of Service (ii) We determine, in our sole discretion, that providing the Services is prohibited by applicable Law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (iii) subject to applicable Law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if You become the subject of bankruptcy or similar proceeding. We will use commercially reasonable efforts to (a) provide You as much prior notice as possible of any situation that we are aware of that could lead to a right to suspend described in this paragraph, (b) work with You to remedy any situation that could lead to a right to suspend described in this paragraph if such situation can be remedied, and (c) limit any suspension as much a possible given the circumstances leading to the suspension
2.11 Your Products.
You are solely responsible for Your products, services, information provided by You, promotions and campaigns, including any and all injuries, damages, claims, liabilities and costs suffered in respect thereto. You agree to provide Your products and services, information provided by You, promotions and campaigns in a safe and professional manner, consistent with applicable laws and industry best practices, including keeping required and reliable records. You agree to comply with any and all statements and promises You make and for all user assistance, warranty and support of Your products and services, promotions. You shall bear all costs of procuring and delivering Your products and services, information, promotions and campaigns. You hold all necessary governmental and third party licenses, approvals, authorizations and registrations necessary to offer Your products and services, promotions, and campaigns.
Article III. Data Use and Protection
3.1 Ownership of Your Data.
As between You and Fulcrum 360, Your Shared Data is and will remain Your property. You grant to Fulcrum 360 a non-exclusive right to use, copy, distribute and display Your Data in connection with Fulcrum 360’s operation of the Fulcrum 360 App and Services, in accordance with these Terms. We may monitor use of the Fulcrum 360 App and Services by all of our customers and You agree that we may use and publish such information. Please note that this license continues even if You stop using our Services. You, not Fulcrum 360, have sole responsibility for the accuracy, integrity, and reliability of Your Data.
Article IV. Subscription Term, Fees, Taxes and Non-Payment
4.1 Subscription Term.
Your initial subscription period will be specified in Your Subscription Agreement, and, unless otherwise specified in Your Subscription Agreement, it will automatically renew. To prevent renewal of Your subscription, You must provide notice of non-renewal as provided in Section 6.3. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR SUBSCRIPTION IS CONTINUOUS AND UNTIL YOU PROVIDE NOTICE OF NONRENEWAL OR FULCRUM 360 STOPS PROVIDING THE SERVICES TO YOU CONSISTENT WITH THESE TERMS, FULCRUM 360 IS AUTHORIZED TO CHARGE YOUR PAYMENT METHOD ON FILE FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES).
4.2 Fees and Payment.
The fees for the Fulcrum 360 App and Services and any additional Professional Services (“Fees”) are set forth in the Subscription Agreement and are payable in advance, irrevocable and non-refundable except as set forth in the Subscription Agreement and these Terms. The then current pricing available on Our website on the date of renewal will apply to Your renewal subscription period. You are liable for all Fees You owe us under any Subscription Agreement. You acknowledge that failure to pay any Fees due under any account You have with us is a breach of these Terms, and in such event You acknowledge we have the right to terminate your account or suspend access to the Fulcrum 360 App and Services or Professional Services associated with any account we have with You or which is under Your control. You agree to provide Fulcrum 360 with complete and accurate billing and contact information for Yourself and Your organization, as applicable, and update such information as necessary. Where payment by credit card is indicated in the Subscription Agreement, or You otherwise provide Fulcrum 360 with credit card information, You represent that You are authorized to use the credit card that You enter and You authorize Fulcrum 360 (or our third party payment processor) to retain Your payment information and to use the stored payment method and information to charge such credit card (a) at the time that You order the Fulcrum 360 App and Services or other Professional Services set forth in the Subscription Agreement, (b) for any billing frequency otherwise established in the Subscription Agreement, and (c) at the time of any renewal, for the amount of fees owing plus any applicable sales taxes for any renewed Subscription Term. Those credit card payments will be subject to any additional terms presented to you by our third-party credit card payment processor, which will be the merchant of record for that transaction. You acknowledge that the amount billed may vary due to added users; promotional offers, changes to Your subscription or changes in applicable taxes or other charges, and You authorize Us (or our third party payment processor) to charge Your payment method for the corresponding amount. Fulcrum 360 reserves the right to verify credit/debit card payments prior to acceptance of Your Order. We also reserve the right to (i) obtain and continue using updated credit card account information electronically, when applicable, from the card brands, (ii) retry failed payments in order to complete transactions, including but not limited to, retrying failed cards with extended expiration dates and, (iii) change or amend authorized third parties to assist with payment processing. If Fulcrum 360, in its discretion, permits You to make payment using a method other than a credit card, Fulcrum 360 will invoice You at the time of the initial Subscription Agreement and thereafter on a monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of Your receipt of Fulcrum 360’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less. Fulcrum 360 reserves the right to revoke permission to use an alternate payment method at any time for any reason. We can set off any obligation You owe us, to the extent permitted by law, against any credit in any account we have with You or under Your control, and You will be liable for the costs we incur to pursue collections against You in order to collect any outstanding Fees, including without limitation attorneys’ and collection agency fees and expenses.
4.3 Non-Payment; Suspension Rights.
Fulcrum 360 may terminate the Fulcrum 360 App and Services if the billing or contact information provided by You is false or fraudulent. In the event any payment is 15 days past due Fulcrum 360 may, without liability to You, disable Your Fulcrum 360 account until balances are paid in full. When disabled, all access will be suspended and data will be unavailable. Fulcrum 360 also reserves the right, in its discretion, to immediately suspend, cancel Your access and/or use of the Fulcrum 360 App and Services and/or deny You the right to initiate an account for or otherwise order new or additional Fulcrum 360 App and Services: where any payment is due but unpaid for sixty (60) days or more under any Subscription Agreement or account associated with You and You have been requested but failed to promptly cure such payment failure. If Fulcrum 360 suspends Your Fulcrum 360 App and Services in full or part, You continue to remain liable for all Fees during any suspension period. Fulcrum 360 may, at its sole option, choose to restore the Fulcrum 360 App and Services during any period of delinquency and such restoration shall not be construed as a waiver of Fulcrum 360’s right to (i) receive full payment for Fees due or (ii) again suspend Your Fulcrum 360 App and Services at any time for non-payment of any unpaid charges. Once cancelled, You will not be able to recover any Fulcrum 360 App and Services information until You bring the Fulcrum 360 Account current. Fulcrum 360 App and Services data may be stored for up to sixty (60) days post-cancellation; however, after sixty (60) days, such data will no longer be available to You. Your delinquent Fulcrum 360 Account, the Fulcrum 360 Account record and delinquent balance may be submitted to a third-party collection service. You agree that Fulcrum 360 shall not be liable to You nor to any third party for any suspension or cancellation of the Fulcrum 360 App and Services resulting from Your non-payment of Fees or from a dispute as to the management rights to Your Fulcrum 360 Account. You may not create another Fulcrum 360 App and Services account if Your existing account is delinquent in payments or is otherwise not in good standing.
Article V. Confidentiality; Use of Names
5.1 Confidential Information.
For purposes of this Agreement, confidential information shall include the business terms in the Subscription Agreement, Your Data, the Fulcrum 360 Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each Party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other Party or by a third-party; (b) not to use the Confidential Information of the other Party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Fulcrum 360 will restrict its employees’ access to Your Confidential Information to only those employees necessary as determined in Fulcrum 360’s sole discretion to successfully provide the Fulcrum 360 App and Services. Fulcrum 360 may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Fulcrum 360 in connection with the performance of this Agreement. Except for personal information within Your Data which is at all times understood to be Confidential Information notwithstanding anything to the contrary in these Terms, Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing Party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other Party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
5.2 Credit Card Information.
Fulcrum 360 agrees that it will retain and store Your provided credit card information only for the minimum amount of time required for business, legal and/or regulatory purposes, and will use standard industry practices to protect such information from unauthorized access, disclosure or use.
5.3 Use of Names in Marketing.
You may not use Fulcrum 360’s name and credentials without prior written consent. If such consent is granted, You agree to cease or alter such use at Fulcrum 360’s request where such use is contrary to Fulcrum 360’s branding policies, could cause any brand confusion in the market or is otherwise objectionable to Fulcrum 360. Fulcrum 360 may use Your business name in an appropriate and acceptable manner for standard marketing promotions, provided that Fulcrum 360 agrees to cease or alter such use at Your written request where such use is contrary to Your branding policies, could cause any brand confusion in the market or is otherwise objectionable to You. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and website presentation and promotion, etc.
Article VI. Term & Termination
6.1 Standard Term.
Unless a different Term is specified in a signed Subscription Agreement between You and Fulcrum 360, the Initial Term of Your subscription to the Fulcrum 360 App and Services will begin on the submission or execution of Your Subscription Agreement and shall continue on a month-to-month basis indefinitely, and You shall pay the applicable fees, until the subscription is terminated as provided for in this Article 6.
6.2 No Early Termination; No Refunds.
The Subscription Term will end on the contract expiration date and You cannot cancel Your Subscription Agreement early without penalty. To prevent automatic renewal of your Subscription, You must provide notice of non-renewal as provided in 6.3 below. All payments are non-refundable, if You should stop using the Fulcrum 360 App and Services during Your Term.
6.3 Notice of Non-Renewal.
Prior to the end of your agreed upon term, You may prevent the renewal of the Subscription Term to the Fulcrum 360 App and Services by emailing your termination request to [email protected] at least ten (10) days prior to Your next billing date.
6.5 Effect of Termination.
Upon termination of the Subscription Term, all Fees then due and payable to Fulcrum 360 must be paid in full even if they have not yet been invoiced to you. Contingent upon its receipt of all such Fees, Fulcrum 360 will continue to make Your Data available for downloading for sixty (60) days after the termination date. Following this sixty (60) day grace period, Fulcrum 360 has no obligation to preserve or provide Your Data to You, and Fulcrum 360 may remove or delete Your Data in Our systems for the Fulcrum 360 App and Services. The provisions of these Terms which by their nature are intended to survive expiration or termination, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses, shall survive any termination.
Article VII. Warranties, Limitation of Liability, and Indemnity
7.1 Limited Warranties.
You warrant that Your business shall comply with these Terms and with all applicable federal, state and local laws and regulations, as well as all incorporated policies, in connection with Your access to and use of the Fulcrum 360 App and Services. You further represent and warrant that You will not violate any laws and/or regulations that govern Your entity
7.2 Warranty Disclaimers.
WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED THROUGH THE SERVICES IS PROVIDED TO YOU ON AN “AS IS,” AND “AS AVAILABLE” AND FULCRUM 360 SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF ELIGIBILITY, AIRWORTHINESS, TRACEABILITY, APPLICATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS TO THE FULLEST EXTENT OF THE LAW. ALPHA, BETA AND PRE-RELEASE OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER, AND FULCRUM 360 SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH SUCH OFFERINGS.
7.3 Errors and Corrections.
Fulcrum 360 does not represent or warrant that the Fulcrum 360 App and Services, or the Content with the Fulcrum 360 App will be error-free, free of viruses or other harmful components, or that defects will be corrected or that it will always be accessible. Fulcrum 360 does not warrant or represent that the Content available on or through this Web Site will be correct, accurate, timely, or otherwise reliable. Fulcrum 360 may make improvements and/or changes to its features, functionality or Content at any time.
By Fulcrum 360. Fulcrum 360 will defend, indemnify, and hold You harmless from and against all claims, demands, actions, suits, discovery demands, including, without limitation, third party subpoenas, government investigations or enforcement actions (“Claim”) brought or threatened against You by a third party and any damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, reasonable attorney’s fees and costs) (“Losses”) related thereto alleging the provision of the Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, or patent (“Infringement Claim”). However, Fulcrum 360 will have no liability or obligation with respect to any (a) Claim and any Losses related thereto arising out of Your use of the Services in breach of these Terms, or (b) Infringement Claim and any Losses related thereto arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing.
By You. You will defend, indemnify and hold Fulcrum 360, its officers, directors, employees, agents, stockholders, and affiliates (“Fulcrum 360 Indemnified Parties”) harmless from and against all Claims brought or threatened by a third party against a Fulcrum 360 Indemnified Party and any Losses related thereto alleging or arising out of (a) Your or any of Your Users’ breach of or activities under these Terms; (b) Your or any of Your Users’ use of the Fulcrum360 App or Services; or (c) Your acts or omissions in connection with the provision of Your products or services, including, without limitation, any related intellectual property Claims.
Infringement Options. If Your use of the Fulcrum360 App or Services has become, or in Fulcrum 360’s opinion is likely to become, the subject of any infringement Claim, Fulcrum 360 may at its option and expense: (a) procure for You the right to continue using the Fulcrum 360 App or Services as set forth herein; (b) modify the Fulcrum360 App or Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms and refund you any unused pre-paid fees.
Indemnification Procedures. In the event of an indemnity obligation, the Indemnified Party shall: (i) promptly notify the Indemnifying Party in writing of such claim; (ii) allow the Indemnifying Party sole control of its defense and settlement (provided that a party may not settle, defend or resolve a claim unless it unconditionally releases the other party of all liability to any third party); and (iii) provide the Indemnifying Party all available information and reasonable assistance at the Indemnifying Party’s cost. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. A party’s indemnification obligations are expressly conditioned upon the Indemnified Party’s compliance with this Section 7.5, provided that, the failure to provide notice of a claim will not limit the rights of an Indemnified Party hereunder except to the extent that such failure materially prejudices the ability of the Indemnifying Party to defend such claim.
7.5 Limitation of Liability.
EXCEPT FOR DAMAGES ARISING FROM A BREACH OF YOUR OBLIGATIONS UNDER SECTION 2.3, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COVER, LOSS OF DATA, LOSS OF BUSINESS, EVEN IF FULCRUM 360 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT WILL FULCRUM 360’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO FULCRUM 360 DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY. ONLY LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE AND AGREE THAT NEITHER FULCRUM 360 NOR THE FULCRUM 360 APP AND SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE RECOMMENDATIONS RELATED TO YOUR USE OF THE Fulcrum 360 App and Services. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY BASED ON YOUR RELIANCE ON OR USE OF ANY INFORMATION CONTAINED IN ANY Fulcrum 360 App and Services OR Fulcrum 360 MATERIALS. Fulcrum 360 WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU FOR SENSITIVE, PERSONAL, OR CLIENT DATA SENT TO Fulcrum 360.
Article VIII. General Provisions
Notices to Fulcrum 360 will only be effective when delivered to [email protected], or any subsequent address we may provide the Fulcrum 360 App and Services. We may give general notices within the Fulcrum 360 App and Services, which will be effective when posted. Alternatively, we may give You notice at our choice either by email or mail to the last known email or physical address that we have on record for You, which will be effective when we send it to the address we have on record for You. You agree that any notices, agreements, disclosures or other communications that We send to You electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. It is Your responsibility to keep all Your contact information current and You waive Your right to receive such notices if You do not provide current contact information.
You do not have a right to assign these Terms without providing prior notice to and obtaining the prior written consent of Fulcrum 360. Any purported assignment in violation of this Section shall be void. We can assign these Terms without Your consent.
8.3 Integration; Modification.
These Terms, as updated, along with the information incorporated into these Terms (information contained in an embedded URL or referenced policy), together with any applicable Subscription Agreement, become part of Your agreement with Fulcrum 360 relating to the Fulcrum 360 App and Services, and Fulcrum 360 Materials, and will apply instead of any, conflicting or additional communications. We may modify, update, add or remove all or parts of these Terms at any time. If we revise these Terms, the modified version will not be retroactive and will be effective and binding the day after we post the revised Terms on https://Fulcrum 360.com/terms. We will give You notice of material changes to our Terms, most likely via email or within the Fulcrum 360 App and Services, though we may instead give You notice via other methods. If You object to our Terms as revised, You must give us notice within ten (10) days after the revised Terms are posted; in this event, Your continued use of the Fulcrum 360 App and Services will continue to be governed by the Terms in effect prior to Your notice, provided that those Terms will remain in effect only until the expiration or earlier termination of Your then-current Subscription Term. If Your subscription renews at the end of Your Subscription Term, the Terms posted on https://Fulcrum 360.com/terms at the time of Your renewal will apply to You upon such renewal. If You don’t timely object to changes we make to these Terms by giving us notice as described, Your continued access to or use of the Fulcrum 360 App and Services means You have agreed to be bound by the most current version of these Terms which will govern our relationship with You as soon as they become effective. You can always find our most up-to-date Terms at https://Fulcrum 360.com/terms For other than material changes to these Terms, We shall make reasonable attempts to provide You with notice of such modifications by posting them on the website. We have no obligation to provide direct notice of any such changes. Since we might update these Terms from time to time or at any time, we suggest You review them occasionally and check the “Revised” date which will reflect the date the current version was posted.
8.4 Governing Law.
These Terms shall be governed exclusively by the laws of the State of Utah, USA, excluding its conflict of laws rules and, where applicable, will be governed by the federal laws of the United States. We and You agree to the exclusive jurisdiction and venue of the state or federal courts in Utah County, UT, USA for any and all disputes, controversies and claims arising out of or relating to these Terms or concerning the respective rights or obligations of the parties.
8.5 Dispute Resolution; Binding Arbitration.
Any legal disputes or claims arising out of or related to this Agreement (including without limitation claims related to the use of the Services, the interpretation, enforceability, revocability, or validity of the Agreement, or the arbitrability of any dispute), that cannot be resolved informally shall be submitted to binding arbitration in Utah County, Utah (the “Agreement to Arbitrate”). Notwithstanding the foregoing, either of us can bring a claim in small claims court either in Utah County, Utah, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. Any arbitration under these Terms will be conducted by the American Arbitration Association under then prevailing American Arbitration Association Commercial Arbitration Rules (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules, or as otherwise mutually agreed by You and Fulcrum 360. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims must be brought within the statute of limitations or other time required by applicable law. You agree that You shall bring any claim, action or proceeding arising out of or related to the Agreement in Your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate the claims of more than one person and may not otherwise preside over any form of a representative, collective, or class proceeding. YOU ACKNOWLEDGE AND AGREE THAT YOU AND FULCRUM 360 ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.
Unless the Parties agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate, as a result of a decision by the arbitrator or a court order, or the Parties have reserved their rights to pursue legal action in a court of law, You agree that any claim or dispute that has arisen or may arise between the Parties must be resolved exclusively by a state, federal, or small claims court located in Utah County, UT. The Parties agree to submit to the personal jurisdiction of a state court located in Utah County, Utah or a United States District Court for the District of UT located in Utah County, UT.
8.6 Force Majeure.
Except for Your obligation to pay Fees, neither party will be responsible for failure of performance due to causes beyond its control.
All or part of our services may be subject to U.S. export control and economic sanctions laws and other applicable export and import laws (“Export Controls”). You agree to abide by all Export Controls as they relate to Your access and use of our services. You may not access or use the Services if You are located in a jurisdiction where the provision of our Services is prohibited by law (a “Prohibited Jurisdiction”), and You may not provide access to our Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent and warrant that: (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction; and (iii) You will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You are located.
If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect.
8.9 Relationship of Parties.
No joint venture, partnership, employment, or agency relationship exists between Fulcrum 360 and You as a result of these Terms or use of the Fulcrum 360 App and Services.
The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
8.11 Government End Use.
If You are an agency or unit of the U.S. Government (“Government”), the Fulcrum 360 App and Services is provided for ultimate Government use solely in accordance with the provisions of the Federal Acquisition Regulation (“FAR”) and supplements thereto, including the Department of Defense (“DoD”) FAR Supplement (“DFARS”), set forth in this Section. Government technical data and software rights related to the Fulcrum 360 App and Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR §12.211 (Technical Data) and FAR §12.212 (Computer Software) and, for DoD transactions, DFARS § 252.227-7015 (Technical Data – Commercial Items) and DFARS § 252.227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If the Government has a need for rights not conveyed under these terms, it must negotiate with Fulcrum 360 to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum