Capitalized terms below have the respective meanings set forth below or set forth in these Terms:
1.1. “Account” means the account of Customer that is the master account used by Customer to access Fulcrum.
1.2. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, solely during the period of such control, where “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of such entity or the right to otherwise direct the management or policies of such entity.
1.3. “Add-on Feature” means any additional feature that Customer requests that SNI develop.
1.4. “Agreement” means, collectively, these Terms, together with all Orders and SOWs between Customer and SNI.
1.5. “API” means any application programming interface made available by SNI in connection with Fulcrum.
1.6. "Block” means a number of hours of Professional Services that Customer agrees to buy in advance of provision of such Professional Services.
1.7. “Customer Content” means any data of Customer that is entered into Fulcrum by Customer or any User.
1.8. “Deliverable” means any item or deliverable provided to Customer as a part of the Services, other than any Add-on Feature or any Output.
means the current technical and user documentation for Fulcrum, as SNI may make available on the Site from time to time. The Documentation may be modified from time to time.
1.10. “Fees” means the Subscription Fees and Professional Services Fees, collectively.
1.11. “Fulcrum” means, collectively, the Site, the Products, any Optional Services, any applicable mobile application made available by SNI from time to time and the software as a service offering of SNI that enables use of the Site, the Products and any Optional Services.
1.12. “Initial Order” means the initial Order to which these Terms are attached.
1.13. “Law” means any declaration, decree, directive, legislative enactment, order, common law, ordinance, regulation, rule, guideline, guidance or other binding restriction or requirement of or by any governmental authority, as may be amended or replaced from time to time.
1.14. “Maintenance Window” means each period commencing at 8 pm Eastern Time on Friday until 11 pm Eastern Time on Friday, as may be reasonably shortened or extended by SNI from time to time.
1.15. “Optional Services” means any service, other than Professional Services, that is not part of the standard offering of SNI, which may include additional data storage.
1.16. “Order” means an ordering document, whether on SNI’s website or a paper copy, pursuant to which Customer licenses Fulcrum or obtains Fulcrum.
1.17. “Output” means any report or analytical output created by Customer using Fulcrum.
1.18. “Party” means each of SNI and Customer, and together they are the “Parties”.
1.19. “Personal Information” or “PI” means any of the following information provided by or on behalf of Customer to SNI: (a) any information that identifies or can reasonably be used to identify any individual or that can be reasonably associated or linked to any individual, such as first and last name, social security number or other government issued number or identifier, date of birth, home or other physical address, e-mail address or other online contact information, IP address, geolocation data, telephone number, financial account number, credit or debit card number, biometric data, mother's maiden name or any other personally identifiable information; (b) personally identifiable financial, health or insurance information; (c) any unique persistent identifier associated with an individual or a networked device, including a customer number held in a cookie, a user ID, an advertising ID, a browser fingerprint, a processor serial number, a device serial number, or any other number that uniquely identifies a particular telecommunications device, processor or computer; (e) any information that is treated as personal information or its equivalent by an applicable privacy or data security Law; or (f) any other information relating to an individual that is combined with any information in clause (a) of this definition.
1.20. “Product” means any product or service identified on an Order as a product to be provided by SNI.
1.21. “Professional Services” means any implementation, installation, training, consulting, custom development or other professional services provided by SNI to Customer under the Agreement.
1.22. “Professional Services Fees”means the amount specified or calculated to be the “Professional Services Fees” on each Order or SOW.
1.23. “Services” means Products, Optional Services and Professional Services, collectively.
1.24. “SOW” or “Statement of Work” means any statement of work between the Parties, which the Parties may agree to and execute from time to time.
1.25. “Subscription Fee” means the amount specified as “Subscription Fees” on each Order, and includes fees for both the Subscription Services and Optional Services set forth on such Order, or any additional amount in the event that Customer exceeds the number of Users set forth on the applicable Order.
1.26. “Support” means such support as described in Section 5.5 of this DPA.
1.27. “Terms” means these terms under which SNI provides any Services, attached to the Initial Order, and which shall govern each Order or SOW, subject to Section 2.1 of this DPA.
1.28. "Third Party” means any person or entity other than a Party or any Affiliate of a Party.
means an individual authorized by Customer to use the applicable Product in accordance with an Order regardless of whether the individual is actively using such Product at any given time.
2. General; Orders; SOWs; License.
2.1. Orders, SOWs
. Subject to the terms of the Agreement, Customer may use Products or Optional Services and use Fulcrum pursuant to any Order. Each Order shall reference these Terms. Each Order shall be in the form set forth in Exhibit B, except as may otherwise be agreed to by the Parties. Subject to the terms of these Terms and the terms of the applicable SOW, Customer may purchase Professional Services pursuant to any SOW. Each SOW shall reference these Terms. Each SOW shall be in the form set forth in Exhibit C, except as may otherwise be agreed to by the Parties. Any conflict between the terms of an Order or an SOW and these Terms will be resolved in favor of such Order or SOW, only if and to the extent expressly referencing these Terms and the intended change, and only as to such Order or SOW. Any terms which may appear as pre-printed language or otherwise be on, attached to or inserted within any order form, quote, invoice, bill or other form or document issued by Customer shall be of no force or effect even if such form or document is accepted by SNI. Any Affiliate of Customer may place any Order or agree to any SOW under this Agreement, in which case such Affiliate shall be bound to these Terms. Any Order or SOW is only effective once executed by the Parties. Each Order or SOW shall be deemed to incorporate the terms of these Terms, subject to this Section 2.1.
2.2. General License
. Subject to the terms of these Terms including payment of all Fees due hereunder, SNI hereby grants to Customer, during the relevant Order Term, a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use (a) the Products set forth on the applicable Order; (b) Optional Services if Customer subscribes to Optional Services; and (c) any Add-on Features as set forth in Section 5.3, in each case, in accordance with the Documentation, including to generate, use, reproduce and display Output, solely for Customer’s internal business purposes and not for the benefit of any other person or entity. Additional terms of authorized use are as set forth in each applicable Order, and may include, for example, limitations on the number of Users, in which case Customer shall not use more than the number of User licenses purchased. In the event that Customer uses more than the number of User licenses purchased, SNI may invoice Customer for additional Subscription Fees and Customer shall pay such User Fees. Customer understands that SNI may update Fulcrum from time to time.
Customer may make a reasonable number of copies of the Documentation solely for back up or disaster recovery purposes. Customer shall reproduce all copyright, trademark, trade secret and other proprietary notices in such copies. Customer may not make a copy of any aspect of Fulcrum other than the Documentation.
. To use Fulcrum, Customer must register for an Account. Each User must register and create a sub-account as part of Customer’s Account (each, a “Sub-Account”) to be able to use Fulcrum or collaborate and share Customer Content. Each User may use Fulcrum on the mobile device of such User. Each User must have a separate Sub-Account for such User. Customer shall not permit any User to share any Sub-Account with any other User. Customer shall safeguard the username and password for the Account, and shall require each User to safeguard the username and password for each Sub-Account, and Customer shall promptly notify SNI in the event of a breach of the Account of Customer or any Sub-Account of any User and comply with SNI’s reasonable instructions in relation thereto. Customer is responsible for any action or omission that occurs under the Account of Customer or any Sub-Account of any User.
2.5. API; API Usage
. SNI has the right to change the API from time to time. SNI shall use commercially reasonable efforts to provide Customer with reasonable advance notice of any material change to the API. Customer is responsible for ensuring that calls or requests to Fulcrum, including the API, are compatible with the current API. SNI will use commercially reasonable efforts to avoid changes to the API that are not backwards compatible. When Customer uses any API, such usage is based on the Account’s unique API key, and the API key is used for all Sub-Accounts as well. Customer is responsible maintaining the security of the API key for Customer. Customer is responsible for any action or omission that occurs under the API key of Customer. SNI may impose limitations on your usage of any API, from time to time, for load-balancing, security or other reasons.
2.6. Third-Party Software
. Fulcrum uses third-party software to provide certain functionalities, including maps, as may be updated by Fulcrum from time to time. By using Fulcrum, Customer agrees to comply with the terms of service, end user license agreement or other relevant agreement in relation to such third-party software. Upon Customer’s request, SNI shall make available a list of all third-party software then included as part of Fulcrum.
3. Usage Limitations and Requirements
3.1. Maintenance Windows
. Customer agrees that Fulcrum may not be available during any Maintenance Window.
3.2. IP- or Computation-Related Limitations
Customer shall not, directly or indirectly, and shall not allow any Affiliate or Third Party to: (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code or any underlying algorithm or idea from Fulcrum; (b) circumvent or violate any technical restriction of Fulcrum; (c) make any copies of Fulcrum or any portion thereof or any Documentation, except as otherwise authorized in Section 2.3; (d) disclose Fulcrum or any portion thereof, or any Documentation to any Third Party; (e) sublicense, rent, lease, lend or host Fulcrum to or for any Third Party; (f) attempt to unlock or bypass any initialization system, encryption method or copy protection devices in Fulcrum; (g) alter, remove or obscure any patent, trademark or copyright notice in Fulcrum or any Documentation; (h) use components of Fulcrum independent of Fulcrum; (i) use any Confidential Information of SNI to contest the validity of any intellectual property of SNI; (j) publish or disclose to any third party any evaluation of the Platform; (k) interfere with or disrupt the integrity or performance of the Platform; (l) interfere with or damage Fulcrum, including through the use of any virus, bot, Trojan horse, harmful code, flood ping, denial of service attack, packet or IP spoofing, forged routing, forged electronic mail address information, means to reproduce or circumvent the navigational structure or presentation of Fulcrum or its contents, or any other similar method or technology; or (m) use any robot, spider, site search/retrieval application or other automated means to access, retrieve, scrape or index any portion of Fulcrum.
3.3. Use Limitations
. Customer shall not, directly or indirectly, and shall not allow any Affiliate or Third Party to, in connection with use of Fulcrum: (a) violate any applicable Law; (b) infringe the rights of any third party, including intellectual property, privacy or contractual rights; (c) use information obtained through Fulcrum for any unauthorized, improper, or illegal purpose; (d) use Fulcrum (i) to collect, transmit, distribute, post, or submit any unauthorized personal information concerning any person (including any photograph, personal contact information, or numbers of credit, debit or calling cards or accounts) or (ii) to track an individual; (e) use Fulcrum in connection with the distribution of unsolicited commercial email (“spam”) or any advertisement; (f) stalk or harass any person; (g) collect any information about any other user other than as customarily arises in the course of permitted use of Fulcrum; or (h) use Fulcrum to collect information about or from any minor. In order to protect the integrity of Fulcrum, SNI reserves the right at any time in SNI’s sole discretion to block any user from accessing Fulcrum.
. Customer shall be responsible for procuring all hardware and software necessary to use Fulcrum, or that may be used to integrate with or connect to Fulcrum, including the API, for exchange of data with Fulcrum.
. Customer’s license is limited based on the number of Users. One User is entitled to use Fulcrum with up to three (3) devices; provided, however, that in the event that Customer shares devices or Sub-Accounts among Users, SNI may reduce the number devices per User at any time, by providing notice to Customer and may charge Customer for additional Fees based on the number of Users that made use of Fulcrum that were not authorized to do so including based on retroactive use by Customer. Customer understands that SNI may monitor the usage of Customer and Users to ensure compliance with limitations on the number of devices.
4. Usage Standard; Customer Content
4.1. Usage Standard
. Customer shall, and shall require each User to, use Fulcrum responsibly, with good judgment, and in a manner conforming at minimum to prevailing standards for internet etiquette.
4.2. Compliance with Laws
. Customer will comply with all applicable Laws in connection with its use of the Platform or any Service or Output, including any applicable securities Laws, U.S. Export Administration Regulations, anti-corruption Laws and U.S. embargoes, as well as any Laws of any jurisdiction outside of the United States where Fulcrum or any Service, Output or Deliverable is used.
4.3. License to Customer Content
. Customer will own all Customer Content. Nothing in this Section 4.3 shall permit SNI to disclose Customer Data to any Third Party, except at the request of Customer. For purposes of improving the quality or performance of Fulcrum, solely with respect to aggregate and non-identifiable Customer Content, Customer hereby grants to SNI a non-exclusive, perpetual, irrevocable, worldwide, sublicensable, transferable, royalty free, fully paid-up license to reproduce, distribute, prepare derivative works of, modify, adapt, and otherwise use aggregate and non-identifiable Customer Content.
. Customer shall be solely responsible for the accuracy, quality, integrity, legality, appropriation of and the right to use any Customer Data.
4.5. IP Rights and Customer Content
. Customer represents, warrants and covenants to SNI that: (a) all Customer Content has been collected in compliance with all applicable Laws and policies; (b) no Customer Content contains any confidential or proprietary information that Customer does not have authority to make available via Fulcrum; (c) Customer has the right to submit all Customer Content for storage and use or have received all necessary consents and approvals; (d) Customer shall use all Customer Content in compliance with all applicable Laws and policies; (e) Customer’s use of the Customer Content does not infringe or violate the rights of any Third Party; and (f) Customer is not entitled to any kind of compensation or reimbursement of any kind from SNI for any Customer Content. Customer hereby grants to SNI the right to delete, remove or disable any Customer Content at any time for any reason or no reason.
4.6. Problematic Content
. Customer shall not, directly or indirectly, and shall not allow any Affiliate or Third Party to, in connection with use of Fulcrum:: (a) transmit any Customer Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious or otherwise objectionable, as determined by SNI; (b) use a name or language that SNI, in its sole discretion, deems offensive; (c) post defamatory statements; (d) post hateful or offensive Customer Content or Customer Content that disparages any ethnic, racial, sexual, gender, religious or other group; (e) post Customer Content that depicts or advocates the use of illegal drugs; (f) post Customer Content that characterizes violence as acceptable, glamorous or desirable; (g) post Customer Content which infringes another’s copyright, trademark or trade secret; (h) post unsolicited advertising or unlawfully promote products or services; (i) harass, threaten, bully, stalk or intentionally embarrass or cause distress to another person or entity; (j) promote, solicit or participate in any multi-level marketing or pyramid schemes; (k) exploit children under 18 years of age; (l) engage in disruptive activity, such as sending multiple messages in an effort to monopolize a forum; (m) invade the privacy of any person, including posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age); (n) solicit personal information from children under 13 years of age; (o) create a false identity or impersonate another person or entity; or (p) encourage conduct that would constitute a criminal or civil offense. The restrictions in this Section 4.6 are intended to be illustrative, and SNI reserves the right to consider other conduct to be prohibited. In addition, Customer shall not post any content to any of SNI’s social media accounts that is any of items (a)–(p) above.
. If you are a copyright owner or an agent thereof, and believe that any user submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with all of the following information in writing (see 17 U.S.C § 512(c)(3) for further detail): (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on Fulcrum are covered by a single notification, a representative list of such works from SNI; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
5. Professional Services; Add-On Features; Output
5.1. Professional Services
. Any Professional Services to be provided will be described in an SOW and will be provided on a time-and-materials basis, unless otherwise set forth on the applicable SOW. Customer shall provide SNI with (a) reasonable assistance to facilitate scheduling and performance of Professional Services; (b) information required to perform the Professional Services; and (c) an engagement manager to help ensure effective delivery of the Professional Services. Professional Services are accepted when delivered unless otherwise set forth in the applicable SOW. To the extent that any acceptance is required pursuant to any SOW, such acceptance shall be in the form set forth in Exhibit C-1.
. Customer may from time to time purchase a Block, whether as part of any Order or as part of any SOW. If Customer has purchased a Block, SNI shall deduct the number of hours used for Professional Services from such Block until the number of hours in such Block is zero (0). Thereafter, SNI shall invoice Customer at the then-current rate of SNI for Professional Services, except in the event that Customer purchases another Block (unless such other Block is consumed). Upon Customer’s request, SNI shall email Customer within five (5) business days after the end of each calendar month setting forth the number of hours remaining in any Block purchased by Customer.
5.3. Add-on Features
. Customer may from time to time request that SNI develop any Add-on Feature. The Parties may negotiate an SOW therefor, which shall include the payment of Professional Services Fees for the Professional Services required to develop such Add-on Feature. Upon acceptance of such Add-on Feature, Customer shall be licensed to use such Add-on Feature in accordance with the license set forth in Section 2.2. SNI shall be the sole owner of all right, title and interest in and to any improvement to Fulcrum, including any modification, alteration or enhancement made as any Add-On Feature that may be developed in accordance with this Section 5.3. Customer hereby assigns to SNI all of Customer’s right, title and interest in and to any intellectual property in any Add-On Feature.
. Customer shall own all Output created by or on behalf of Customer. SNI shall not assert any claim of ownership over any Output.
. SNI may, but is not obligated to, provide assistance and guidance in respect of Fulcrum. When communicating with SNI, Customer shall not be abusive, obscene, threatening, harassing or racially offensive, or otherwise behave inappropriately. If SNI feels that Customer’s behavior towards any of our representatives is at any time threatening or offensive, SNI reserves the right to immediately terminate Customer’s access to Fulcrum.
6. Fees; Audits
. Customer shall pay to SNI, or SNI’s authorized designee, the Fees set forth in each Order or SOW and reimburse SNI for any costs or expenses associated with Professional Services, subject to SNI’s compliance with Customer’s policies for such costs or expenses that have been provided to SNI in advance. Fees and reimbursement of costs or expenses are due and payable within thirty (30) days after the date of SNI’s invoice. Customer shall pay to SNI a late charge of one percent (1%) per month or the highest amount permitted by applicable Law, whichever is less, on any Fees or costs or expenses not paid by the due date, with such interest accruing daily and capitalizing monthly. Customer may dispute any invoice within sixty (60) days after receipt, in which case Customer shall pay the undisputed portion of such invoice and the Parties shall promptly attempt to resolve such dispute.
6.1. Commitments; Non-Refundable
. Any Order may set forth a commitment period for any Product. In such event, upon entering into such Order, Customer hereby agrees to pay the Subscription Fees for such Product during the entirety of the applicable commitment period. In the event that any Order is terminated, Customer shall pay to SNI the amount of any such commitment within thirty (30) days after the effectiveness of such termination. SNI shall not be obligated to refund any Fees to Customer in any circumstances, including in the event of any termination of the Agreement.
6.3. Credit Card Customers
. If the applicable Order sets forth that Customer is paying Fees by credit card, Customer shall provide SNI’s credit card processor with a credit card number for a credit card that is valid during the Initial Order Term for such Order on the Effective Date of such Order, and Customer hereby authorizes SNI (through SNI’s credit card processor) to charge such credit card for the full amount of Fees for each billing cycle on the first day of each billing cycle for each Product, and, at SNI’s option, a reasonable charge for a credit card processing fee. However, in the event that the Fees exceed twenty-four thousand dollars ($24,000) in any calendar year or two thousand dollars ($2,000) in any month, SNI may require Customer to pay to SNI such Fees by another method, such as ACH.
6.4. Currency; Bank Charges
. Unless otherwise identified in an Order or SOW, all Fees are stated in, and all Fees and reimbursement of costs or expenses will be paid in, United States dollars. Customer is responsible for any currency conversion fees or bank charges imposed on any transaction hereunder.
. The Fees do not include any amount for taxes. Customer will pay all international, national, federal, state, provincial or local sales, use, value added, goods and services, property, excise, or other taxes imposed on or with respect to this Agreement, except for any taxes imposed on the income of SNI. If any sales, use, value added, goods and services, property, excise, or other taxes (except for taxes based on Licensor’s net income) are assessed against or required to be collected in connection with any Order or SOW, SNI will itemize such taxes on each invoice issued in connection with such Order or SOW.
. Customer shall maintain any records necessary to verify compliance with this Agreement. Upon SNI’s request, Customer shall make available to SNI such records. SNI or its designated third party has the right, but not the obligation, to verify Customer’s compliance with the terms of the Agreement remotely, or, on five (5) days’ written notice, on location at any location and for any environment in which Customer uses Fulcrum. Such local verification will take place during normal business hours in a manner which minimizes disruption to Customer’s work environment. SNI will notify Customer in writing if any such verification indicates that Customer has used Fulcrum in excess of the use authorized by the Agreement. In the event of any such excess use, Customer agrees to promptly enter into an Order and pay all associated fees directly to SNI for the charges that SNI specifies including: (a) any excess use; (b) maintenance or subscription fees for the excess use for the duration of such excess; and (c) any additional Fees determined as a result of such verification.
7. Intellectual Property
. SNI owns all right, title and interest in and to Fulcrum and any intellectual property rights therein, subject to the limited licenses granted herein. Customer shall not use any trademark in any manner, including “Fulcrum”, including as part of a meta tag on any other website.
7.2. No Sale
. The grant of rights to Fulcrum is not a sale of Fulcrum or any portion thereof. SNI retains all right, title and interest in and to Fulcrum, including any modifications, alterations or enhancements thereto.
7.3. No Implied Licenses
. Except for the express licenses set forth in this Agreement, this Agreement does not grant to Customer any license, by implication, estoppel or otherwise.
7.4. No Assignment
. Except for the express licenses set forth in this Agreement, this Agreement does not transfer any right, title or interest in any intellectual property right of either Party to the other Party. This is not a work made-for-hire agreement (as that term is defined in Section 101 of Title 17 of the United States Code).
. Customer shall not display Fulcrum, or any portion thereof, in a frame unless done through a supported, built-in feature of Fulcrum, and shall not display any of Customer Content via any in-line links. Customer may, however, establish ordinary links to the homepage of the Site and other sections of the Site.
7.6. Third-Party Sites
. SNI may provide links to third-party websites on Fulcrum, and some of the Customer Content may be supplied by any third party. SNI has no responsibility or accountability for any third-party website or any content made available by any Third Party. A link to any other website or service is not an endorsement of that website or service or the information it provides. Customer’s use of any information on any third-party site is at Customer’s own risk.
. If Customer elects to provide SNI with any suggestion, idea for improvement, recommendation or other feedback (collectively, “Feedback”), SNI may use such Feedback without any restriction or payment, including to improve Fulcrum.
. SNI has the right to collect and analyze data relating to provision, use or performance of Fulcrum, and SNI may (a) use such data to improve Fulcrum or for other development, diagnostic or corrective purposes in connection with Fulcrum or to develop other SNI offerings; (b) disclose such data solely in aggregate or de-identified form; and (c) use any such improvement or make any such disclosure without limitation hereunder.
7.9. AI Improvements
. Customer hereby authorizes SNI to improve Fulcrum through application of machine learning, tuning or any modification, alteration or enhancement to Fulcrum (“AI Improvements”). Customer agrees that, in the ordinary course of machine learning development, as part of such AI Improvements, SNI may extract and retain patterns from data associated with an annotation arising in connection with this Agreement which do not identify Customer and do not enable reconstruction of Customer Content (“Patterns”) and use, copy, prepare derivative works of or otherwise exploit any such Pattern to continue to improve Fulcrum, or any successor product or service, in perpetuity. Any AI Improvement arising from the Agreement shall be the sole and exclusive property of SNI and shall constitute intellectual property of SNI.
7.10. No Challenge
. Customer shall not, and shall ensure that each Affiliate of Customer shall not, make any claim against SNI, any Affiliate of SNI or any of its or their direct or indirect customers or Customers for infringement of any patent or other intellectual property right owned by Customer or any related entity of Customer relating to intellectual property developed by or for Customer using Fulcrum.
7.11. US Government Customers
. If Customer is the U.S. Government or any agency or department thereof (collectively, the “Government”), Fulcrum is provided with RESTRICTED RIGHTS; use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights clause at 48C.F.R. 52.227-19.
8.1. Confidential Information
. Each Party may from time to time disclose information to the other Party in connection with this Agreement, whether or not marked as such, and whether disclosed in writing, orally, visually or otherwise (“Confidential Information”). Customer Data and Output shall be deemed to be the Confidential Information of Customer. Fulcrum, any API or Feedback or any information regarding Fees shall each be deemed to be Confidential Information of SNI. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes available to the public other than through a breach of this Agreement by the receiving Party; (b) is received by the receiving Party from a Third Party not subject to any confidentiality obligation in favor of the disclosing Party; or (c) is independently developed by the receiving Party without access or reference to Confidential Information of the disclosing Party.
. The receiving Party shall not use any Confidential Information of the disclosing Party for any purpose other than in furtherance of this Agreement. The receiving Party shall not disclose any Confidential Information of the disclosing Party, except to any employee, consultant or other representative bound by confidentiality obligations at least as stringent as those set forth herein or to any investor, lender or financing source that is made aware of the confidential status of the Confidential Information of the disclosing Party. The receiving Party shall be responsible for any action or omission by any such employee, consultant or other representative, or any investor, lender or financing source, as if made by the receiving Party. The receiving Party shall promptly notify the disclosing Party of any breach of this Section 8.2.
8.3. Permitted Disclosures
. Notwithstanding Section 8.2, the receiving Party may disclose Confidential Information of the disclosing Party to the extent that the receiving Party is required or requested to do so pursuant to applicable Law by any governmental authority or rules of a stock exchange; provided, however, that prior to any such disclosure, the receiving Party shall (a) assert the confidential nature of the Confidential Information of the disclosing Party to such governmental authority or stock exchange; (b) promptly notify the Disclosing Party of the governmental authority’s requirement or request to disclose; and (c) cooperate with the disclosing Party in contesting any such disclosure or obtaining a protective order, confidential treatment or the like at the expense of the disclosing Party.
. Notwithstanding any other provision of this Agreement, each Party acknowledges that any use of Confidential Information of the disclosing Party in a manner inconsistent with this Agreement, or Customer’s use of Fulcrum in breach of this Agreement, may cause the other Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, each Party agrees that, in addition to any other remedy to which the other Party may be entitled hereunder, at law or in equity, the other Party shall be entitled to injunctive relief, without the posting of any bond and without proof of actual damages, to restrain such use in addition to any other applicable remedy available under applicable Law.
. SNI is happy to have Customer as a valued customer. Customer hereby grants to SNI a worldwide, non-exclusive, royalty-free, non-transferable license to use Customer’s trademarks, service marks or logos for the purpose of identifying Customer as a Fulcrum customer in order to promote Fulcrum. If Customer prefers that SNI not use Customer’s name or logo in a particular way, please contact firstname.lastname@example.org and SNI will respect Customer’s wishes.
9. Personal Information
9.1. Personal Information
. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Content including any Personal Information, and use and processing of any Customer Content including any Personal Information hereunder. Customer shall be responsible for obtaining any consent that may be required to collect, submit and use Customer Content including any Personal Information on Fulcrum. Customer shall be solely responsible for ensuring that the collection, disclosure, analysis and use of Customer Content including Personal Information compliance with any applicable Law. Customer shall not use Fulcrum to collect or otherwise transmit to SNI any sensitive PI, including any Social Security number, financial account number, financial information, driver’s license number, passport number, government identification number, health information or biometric data. Customer shall maintain a policy that complies with applicable Law in respect of handling of Personal Information.
9.2. Data Processing Agreements
. Attached as Exhibit D is a data processing agreement (the “GDPR Data Processing Agreement”) and attached as Exhibit E is a data processing agreement (the “CCPA Data Processing Agreement”). By accepting this Agreement, Customer is agreeing to the GDPR Data Processing Agreement and the CCPA Data Processing Agreement, each of which shall govern in the event of a conflict between the Terms and such agreement.
9.3. Data Security
. SNI agrees that all systems used to process and store Customer Content will adhere to commercially reasonable security standards. SNI may process and store Customer Content with a Third Party in the United States of America or any other country in which such Third Party maintains facilities. SNI takes data security very seriously and will vigorously pursue all actual or threatened security breaches. Customer agrees to report any security concerns to email@example.com
10. Liability; Indemnity
10.1. Authority and Usage
. Customer hereby represents and warrants to SNI that: (a) Customer has the right, ability and authority to enter into and perform the Agreement; and (b) Customer’s use of Fulcrum will not violate the Agreement in any respect.
10.2. No Consequential Damages
. SUBJECT TO SECTION 10.4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF DATA, PROFITS, REVENUES OR USE OF FULCRUM, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF FULCRUM OR THIS AGREEMENT.
10.3. Damages Cap
. SUBJECT TO SECTION 10.4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, IN AN AMOUNT IN EXCESS OF THE AGGREGATE FEES PAID TO SNI IN THE TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO THE MOST RECENT CLAIM UNDER THE ORDER OR SOW UNDER WHICH THE CLAIM AROSE.
. The limitations and exculpations of liability set forth in Sections 10.2 and 10.3 shall not apply in respect of (a) any breach of Sections 2, 3, 4, 7 or 8; (b) a Party’s indemnification obligations set forth in this Section 10; (c) any Fees owed hereunder; or (d) a Party’s infringement of the other Party’s intellectual property rights, but shall otherwise apply to the maximum extent permitted by applicable Law. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS AND EXCULPATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 ARE AN ESSENTIAL BASIS OF THE BARGAIN AND THAT, ABSENT SUCH LIMITATIONS AND EXCULPATIONS, THE FEES WOULD HAVE NECESSARILY BEEN MUCH HIGHER.
10.5. Timing of Claim
. ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE EVENTS GIVING RISE TO SUCH CLAIM.
. SNI DOES NOT WARRANT THAT FULCRUM WILL OPERATE ERROR-FREE OR THAT SNI WILL CORRECT ANY ERROR. FULCRUM AND ANY SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE”. SNI DOES NOT WARRANT THAT ANY CUSTOMER CONTENT WILL BE ACCURATE OR RELIABLE. SNI AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,WITH RESPECT TO FULCRUM OR SERVICES FURNISHED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. ANY USE OF FULCRUM OR SERVICES BY ANY PARTY, INCLUDING CUSTOMER, IN ANY HIGH RISK APPLICATION, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH ANY CUSTOMER SOFTWARE WHICH IS A HIGH RISK APPLICATION, IS DONE AT THE USER’S OWN RISK, WITHOUT ANY WARRANTY. A “High Risk Application” is any application or use where the failure of Fulcrum or Services could cause serious risk, including risk of injury to persons or property, or a life-threatening situation, including medical, nuclear, aviation, navigation, emergency services, emergency weather alerts, or military applications. SNI is not, directly or indirectly, via Fulcrum or Services or otherwise, providing any medical, legal, financial or other advice subject to regulatory oversight, or acting as a doctor, lawyer, broker, insurance agent or other regulated entity.
10.7. Customer Indemnification
. Subject to Section 10.10, Customer hereby agrees to defend, indemnify and hold harmless SNI and its Affiliates from any costs (including reasonable attorneys’ fees), expenses, claims, liabilities, judgments, damages or losses (collectively, “Losses”), in each case, arising out of any claim by a Third Party to the extent alleging (a) any failure by Customer to comply with any applicable Laws; (b) any violation of privacy rights of any Third Party by Customer; (c) any gross negligence or intentional misconduct of Customer; (d) use of Fulcrum by Customer in combination with products or software not provided by SNI; (e) any modification, alteration or enhancement of Fulcrum not created by or on behalf of SNI; or (f) any infringement or misappropriation of any patent, copyright, trademark or trade secret of any Third Party by any Customer Content.
10.8. SNI Indemnification
. Subject to Sections 10.9 and 10.10, SNI hereby agrees to defend, indemnify and hold harmless Customer and its Affiliates from any Losses arising out of any claim by a Third Party to the extent caused by (a) the gross negligence or intentional misconduct of SNI; or (b) Fulcrum infringing a United States patent, copyright, trademark or trade secret of such Third Party, except to the extent arising out of: (i) use of Fulcrum by Customer in combination with products or software not provided by SNI; or (ii) any modification, alteration or enhancement of Fulcrum not created by or on behalf of SNI. If Customer’s use of the Platform is, or in SNI’s opinion is likely to be, found to infringe, SNI may, in its sole discretion: (x) modify the infringing element of Fulcrum to be non-infringing without materially degrading the functionality of Fulcrum; (y) procure for Customer the right to continue using Fulcrum; or (z) terminate the affected Order(s) and refund to Customer the pro rata
portion of any prepaid Fees associated with Fulcrum for any unused portion of the Order Term for the affected Order(s). THIS SECTION 10.8 SETS FORTH SNI’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY FULCRUM.
. The defense and indemnification obligations of SNI shall not apply to the extent the alleged infringement arises out of (a) use of Fulcrum by Customer in combination with products or software not provided by SNI; (b) any modification, alteration or enhancement of Fulcrum not created by or on behalf of SNI; (c) failure to implement the latest release of Fulcrum; or (d) any matter indemnified by Customer in Section 10.7.
10.10. Indemnity Conditions
. As a condition to the indemnity obligations of a Party hereunder, the indemnified Party or its Affiliates shall (a) provide prompt notice of any indemnifiable claim; (b) tender the defense of the claim to the indemnifying Party; (c) cooperate with the indemnifying Party at the indemnifying Party’s expense; and (d) not settle or compromise any such claim without the consent of the indemnifying Party. Customer will immediately inform SNI as soon as Customer becomes aware of any threatened or actual liability claim by any Third Party relating to the Platform or Services.
11. Term; Termination
. The term of the Agreement commences on the Effective Date (which is set forth on the Initial Order) and continues until either Party terminates this Agreement in accordance with this Section 11. Each Order will be effective as of the “Effective Date” set forth in such Order and remain in effect until the end of the Order Term for such Order, unless terminated in accordance with these Terms.
. If there is no Order then in effect, either Party may terminate the Agreement upon five (5) days’ prior notice to the other Party. Either Party may terminate the applicable Order by notice to the other Party if the other Party materially breaches such Order and fails to cure such breach within sixty (60) days after receipt of such notice, or an additional period of time as agreed to by the Parties.
. SNI may suspend access to Fulcrum (a) in the event of any failure to pay Fees when due or (b) in the event of any other breach of the Agreement that is not cured within fifteen (15) days after notice thereof to Customer. SNI may delete the Account or any Sub-Account and bar access to any Customer Content in such event.
11.4. Effect of Termination
. Upon termination or expiration of any Order, Customer will immediately cease use of the applicable Services and delete or remove all copies of any downloadable application from any device of Customer. Upon termination or expiration of this Agreement, each Party will return or destroy any Confidential Information of the other Party. Notwithstanding the previous sentence, SNI shall make available to Customer the Customer Content subject to the applicable Order(s) in an industry standard format, such as .csv, until the date that is ninety (90) days following the date of termination or expiration of this Agreement or the applicable Order(s), and SNI will destroy the Customer Content approximately on, but no earlier than, such date. SNI shall not be liable for any loss of access to Customer Content or loss of use of Fulcrum. SNI is not responsible for refunding any Fees, including for any Block that was purchased or for any portion of a Block that was not used.
. Accrued obligations and Sections 1, 3.2, 3.3, 4.3, 4.4, 4.5, 4.6, 4.7, 6, 7, 8, 9.1, 9.4, 10, 11.3, this 11.4 and 12 will survive termination of this Agreement, any Order or any SOW.
. Any communication, demand, approval, consent or other notice from one Party to the other Party shall be in writing and personally delivered, sent via certified mail, postage prepaid and return receipt requested, sent via internationally recognized courier service or sent via email with a copy sent by one of the other previous means, to the other Party at the address set forth on the Initial Order or such other address as either Party may from time to time designate in writing to the other Party. No change of address shall be binding upon the other Party until notice thereof is received by such Party at the address show herein. Each notice shall be in English. Each notice shall be effective (a) on personal delivery; (b) five (5) days after delivery by certified mail, postage prepaid and return receipt requested, (c) two (2) business days after being sent via internationally recognized courier service; or (d) the next business day after being sent via email with a copy sent by one of the other previous means. Any notice that is not in relation to any dispute, bankruptcy, insolvency or indemnification must be sent via email. Customer may notify SNI of any changes in such e-mail address for notices at any time by submitting a request to SNI at firstname.lastname@example.org
. Customer agrees to accept correspondence from SNI at its designated e-mail address.
12.2. Force Majeure
. Except for Customer’s payment obligations, neither Party is responsible for any delay or failure to perform resulting from any cause beyond such Party’s reasonable control, including any act of God, fire, hurricane, flood, terrorism, act of war, riot, labor disturbance, telecommunications failure, utility failure, network failure, epidemic, pandemic, act of governmental authorities or change of applicable Laws.
. Customer is not permitted to transfer or assign (by operation of law or otherwise) any of its rights or obligations under any Order or the Agreement without the prior consent of SNI, which consent will not be unreasonably withheld, delayed or denied. Any such transfer or assignment without SNI’s consent will be void and of no force and effect. The Agreement inures to the benefit of the Parties. The Agreement does not create any benefit or provide any cause of action to any Third Party.
. If any provision of the Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of the Agreement will remain in full force and effect.
12.5. Independent Contractor
. Each Party will act as an independent contractor and employees of each Party will not be considered to be employees of the other Party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither Party may make any commitments binding on the other Party, nor may either Party make any representation that they are acting for, or on behalf of, the other Party.
12.6. Applicable Law; Dispute Resolution
(a) This Agreement will be governed by, and construed in accordance with, the laws of the State of Florida, without regard to its principles of conflict of Laws. Notwithstanding the foregoing, if Customer is the Government, then the Agreement will be governed by, and construed in accordance with, the federal laws of the United States of America.
(b) In the event of any dispute arising out of or relating to this Agreement, a suit will be brought only in a federal or state court of competent jurisdiction located in Tampa, Florida, United States of America.
(c) Notwithstanding the exclusive jurisdiction set forth in Section 12.6(b), in the event that Customer is an entity that is formed outside of the United States of America, the Parties agree that SNI may, at its sole discretion, request in writing that any dispute, claim or controversy in connection with this Agreement, including any questions regarding its formation, existence, validity, enforceability, performance, interpretation, breach or termination, shall be resolved by a final, binding arbitration conducted under the Commercial Arbitration Rules of the American Arbitration Association. If SNI elects to exercise its right to resolve such dispute, claim, or controversy by binding arbitration, the following parameters shall apply to the arbitration: (a) the arbitration shall be decided by one (1) arbitrator appointed in accordance with such rules; (b) the place of the arbitration shall be Tampa, Florida, United States of America; (c) the language of the arbitration shall be English; and (d) at any time, a Party may seek or obtain preliminary, interim, or conservatory measures from the arbitrator or from a court of competent jurisdiction. If such dispute, claim, or controversy was initially brought by Customer, SNI must make such a request for arbitration within thirty (30) days after SNI has been served with the applicable complaint.
. Captions and headings contained in the Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing the Agreement.
. Except where the context expressly requires otherwise, (a) the use of the singular will be deemed to include the plural (and vice versa); (b) the words “include”, “includes”, “including” or “e.g.
” will be deemed to be followed by the phrase “without limitation”; (c) the word “will” will be construed to have the same meaning and effect as the word “shall”; (d) the words “herein”, “hereof” and “hereunder”, or any word of similar import, will be construed to refer to the Agreement in its entirety and not to any particular provision hereof, including each Order or SOW that references these Terms, and (f) the term “or”will be interpreted in the inclusive sense commonly associated with the term “and/or”.
12.9. Governing Language
. The Parties have required that the Agreement be drawn in the English language, and that the English language version shall control over any translations thereof. If Customer is located in Quebec, the following sentence shall apply: Les parties conviennent que cette entente ainsi que tout document accessoire soient rediges en anglais.
12.10. Costs, Expenses and Attorneys’ Fees
. If either Party commences any action or proceeding against the other Party to enforce or interpret this Agreement, the prevailing Party in such action or proceeding shall be entitled to recover from the other Party the actual costs, expenses and reasonable attorneys’ fees (including all related costs and expenses), incurred by such prevailing Party in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.
12.11. Entire Agreement
. This Agreement and each Order, SOW, and all appendices, exhibits, schedules and attachments hereto constitute the sole and complete agreement between the Parties with regard to its subject matter, may not be modified or amended except by a writing signed by both Parties except as otherwise indicated herein, and supersedes all proposals, understandings, representations, prior agreements or communications relating to Fulcrum or the subject matter of the Agreement. The Agreement also supersedes any pre-printed terms contained on any purchase order or similar document issued by Customer and any such terms will have no force or effect. Neither the Agreement nor any Order or SOW will be construed against the Party that has prepared the Agreement or such Order or SOW, but instead will be construed as if both Parties prepared the Agreement, Order or SOW.
. The Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of such together shall constitute one and the same instrument. Execution of the Agreement may be by digital signatures or exchange of PDF signature pages, or by exchange of signed copies of this Agreement.Order Form (PDF)
SOW Form (PDF)Exhibit C-1
Acceptance Form (PDF)