Fulcrum Enterprise License Agreement
This FULCRUM ENTERPRISE LICENSE AGREEMENT (this “Agreement”) is made as of the Effective Date in between Fulcrum Technology Solutions LLC (“Fulcrum”) a Houston Company and the End User (“Customer”). Fulcrum and Customer are sometimes referred to as the “Parties” and each individually as a “Party.”
1. License Grant; Use of Software
1.a. License. Subject to the terms and conditions in this Agreement, Fulcrum grants to Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited right and license to access and use Fulcrum’s proprietary software solution (the “Software”) as purchased during the Term (as defined below) and solely for Customer’s internal business purposes.
1.b. Customer Responsibilities and Obligations. Customer: (i) is solely responsible for the use of the Software by Customer and Customer’s employees, agents, contractors, representatives and any other personnel authorized by Customer to access the Software (collectively, “Users”); (ii) shall require Users to comply with the terms of this Agreement; and (iii) shall comply with all applicable federal, state, local, foreign and international laws, rules, regulations, ordinances, treaties and governmental orders (collectively, “Laws”) in using the Software (including, without limitation, (A) all antibribery laws (including the Foreign Corrupt Practices Act (US) and the Anti Bribery Act (UK)); and (B) all export control laws and regulations (including the U.S. Export Administration Regulations).
1.c. Ownership of the Software.
1.c.1. The Software is Fulcrum’s sole and exclusive property including all: (A)
updates,improvements, enhancements, revisions, modifications, new releases and versions, fixes, patches, and derivative works of the Software, user guides, reference manuals, installation materials, and other supporting documentation related to the Software; and (B) integrations, customizations, components, modules, workflows or other work product produced by Fulcrum (whether alone or jointly with Customer) for Customer and including all Intellectual Property rights thereto and therein. No rights are granted to Customer other than as expressly described in this Agreement.
1.c.2. As used herein, “Intellectual Property” means any and all discoveries, improvements, ideas, concepts, creative works, processes, methods, formulas, techniques, know-how, designs, works of authorship, trade secrets, copyrights, patent rights, trademarks, service marks, and any other proprietary rights. Customer may provide suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) to Fulcrum relating to the Software or Services. Fulcrum may use and include any Feedback, and any Intellectual Property therein, that Customer chooses to voluntarily provide to improve the Software, Services, or any other related technologies. Customer agrees that Fulcrum may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback, including any Intellectual Property therein, in the Software, Services, or other related technologies. Fulcrum may modify, change, and upgrade the functionality, features, and capabilities of the Software and the underlying technical infrastructure, in its sole and absolute discretion.
1.c.3. Customer shall not and shall not direct any third party to: (A) license, sublicense, modify, copy, reproduce, rent, loan, lease, sell, assign, distribute, commercially exploit, create derivative works based on, infringe or violate Fulcrum’s Intellectual Property rights, or other rights in, the Software; (B) decompile, disassemble, translate, reverse engineer or otherwise attempt to identify, reconstruct, derive or discover the source code of the Software; (C) remove or alter any identification or proprietary notices appearing in the Software; (D) circumvent or violate the technical restrictions of the Software; (E) publicly disseminate performance information about or analysis of the Software, including benchmarking test results; (F) access the Software in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics of the Software; (G) use the Software for any purpose other than as expressly authorized herein; or (H) take any action that would cause any part of the Software to be placed in the public domain.
1.c.4. Customer acknowledges the Software may include third party software, including open source software components embedded in, or otherwise provided with, the Software (“Third Party Software”). Third Party Software is expressly excluded from the defined term “Software” as used throughout this Agreement.
1.c.5. If Customer is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. This product was developed fully at private expense. All other use is prohibited.
2. Services - Subject to Customer’s payment of applicable fees, Fulcrum will provide maintenance and support services (“Maintenance Services”). To the extent applicable, Customer may purchase Professional Services (“Professional Services”). Hereinafter, “Services” means, collectively, Maintenance and Professional Services, as applicable.
3. Fees- Customer will pay Fulcrum the Software license fee and the Services fees. Fulcrum reserves the right to adjust the fees at any time at Fulcrum’s sole and absolute discretion. Any adjustments to the fees will take effect in the next Renewal Term. All fees paid to Fulcrum are non-refundable. Fulcrum may charge interest on all undisputed overdue fees at a rate equal to one and one-half percent (1.5%) per month (or, if lower, the maximum allowable by Law) on the unpaid amount until such amounts are paid. Customer will be solely responsible for, and will pay, any sales, use, excise, transfer, value-added and any other taxes and levies (other than taxes based on Fulcrum’s income) that are imposed by any governmental authority in connection with this Agreement. All payments made by Customer under this Agreement shall be made without deduction for, or on account of, any taxes, levies, imposts, duties, charges, fees, or withholdings of any nature now or hereafter imposed by any governmental authority except as required by Law. If Customer is required to make any such deduction, Customer shall pay to Fulcrum, no later than the time the payment subject to withholding is required to be made, such additional amounts as are necessary so that Fulcrum receives, after such deduction, the full amount that Fulcrum would have received but for the deduction.
4. Term and Termination
4.a. Term. The initial term of this Agreement commences on the Effective Date reflected in the purchase order or invoice (the “purchase”) and will continue for a period that is identified in that purchase (the “InitialTerm”). Upon expiration of the Initial Term, this Agreement will automatically renew for additional, successive one (1) year terms (each a “Renewal Term” and the Initial Term and all Renewal Terms are collectively, the “Term”), unless either Party provides written notice of non-renewal at least forty-five (45) days prior to the end of the Initial Term or the Renewal Term then in effect.
4.b. Termination. This Agreement may be terminated pursuant to any of the following provisions:
4.b.1. Default. If a Party fails to materially perform or comply with any of its obligations under this Agreement, and such failure is not remedied within thirty (30) days after receipt of written notice of such failure, then the other Party may terminate this Agreement effective upon expiration of such thirty (30) day cure period.
4.b.2. Insolvency/Bankruptcy. Fulcrum may terminate this Agreement effective immediately upon written notice to Customer if Customer: (A) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver, or similar authority; or (B) becomes subject to any bankruptcy or insolvency proceedings or orders.
4.b.3. Default of Certain Terms. If Customer breaches any of Customer’s obligations under this Agreement, Fulcrum may terminate this Agreement effective immediately upon written notice to Customer.
4.c. Effect of Termination. Upon termination or expiration: (i) Customer will immediately stop using the Software; (ii) Customer’s Software license will immediately terminate; (iii) Fulcrum will immediately cease Services; and (iv) Customer will pay Fulcrum, within ten (10) business days following the termination or expiration date, all accrued fees and any other charges that remain unpaid.
5. Representations and Warranties - Customer represents and warrants to Fulcrum that: (a) Customer has the requisite power and authority to execute, deliver, and perform Customer’s obligations under this Agreement; and (b) the execution, delivery and performance of this Agreement by Customer do not and will not: (i) conflict with, or constitute a default (now or in the future) of any agreement, instrument or other understanding to which Customer is bound; or (ii) result in a violation of any Laws or other restriction of any court or governmental authority to which Customer is subject
6. Disclaimers - THE SOFTWARE AND ANY THIRD PARTY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS. FULCRUM MAKES NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SECURITY, ACCURACY, COMPLETENESS, TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE SOFTWARE, THIRD PARTY SOFTWARE OR THE SERVICES OR ANY MATERIALS PROVIDED IN CONNECTION THEREWITH. FULCRUM DOES NOT REPRESENT, WARRANT OR GUARANTY THAT (A) THE SOFTWARE OR ANY THIRD PARTY SOFTWARE WILL BE 100% SECURE OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SERVICE OR DATA; (B) THE SOFTWARE, THIRD PARTY SOFTWARE AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY DATA STORED USING THE SOFTWARE WILL BE ACCURATE, RELIABLE, OR SECURE; (D) ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED; (E) THE SOFTWARE OR ANY THIRD PARTY SOFTWARE OR SERVICES USED BY FULCRUM IN CONNECTION WITH THE SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (F) THE SOFTWARE WILL DETECT, ALERT CUSTOMER TO, RESPOND TO, OR RESOLVE ANY GIVEN SECURITY THREAT OR BREACH.
7. Limitation of Liability
7.a. EXCEPT FOR: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 8(a) OR 8(b); (B) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS; AND/OR (C) CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 1(b) AND/OR 1(c), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES IN CONNECTION WITH OR ARISING OUT OF: (I) THE SOFTWARE, SERVICES, OR ANY THIRD PARTY SOFTWARE, SERVICES, CONTENT OR OTHER MATERIALS USED WITH THE SOFTWARE AND/OR THE SERVICES; (II) ANY THIRD PARTY SOFTWARE, SERVICES, CONTENT OR OTHER MATERIALS PROVIDED OR USED IN CONNECTION WITH THE SOFTWARE AND/OR THE SERVICES; OR (III) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR ANY BREACH BY A PARTY HEREOF), REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER CONTRACT, TORT OR OTHERWISE) AND EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURY TO PERSON OR PROPERTY, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, USE OR LOSS OF DATA, UNDETECTED OR DELAY IN THE DETECTION OF SECURITY BREACHES AND THREATS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, AND THE CLAIMS OF THIRD PARTIES).
7.b. EXCEPT FOR: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 8(a) OR 8(b); (B) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS; AND/OR (C) CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 1(b) AND 1(c); AND (D) FEES OWED BY CUSTOMER TO FULCRUM, EACH PARTY EXPRESSLY AGREES THAT THE TOTAL LIABILITY OF THE OTHER PARTY UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR THE OTHER PARTY’S ACT OR OMISSION HEREUNDER, OR FOR ANY BREACH HEREOF) WILL BE LIMITED TO AN AMOUNT EQUAL TO THE AGGREGATE FEES ACTUALLY RECEIVED BY FULCRUM FROM CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH PARTY’S CLAIM.
7.c. SOLELY WITH RESPECT TO FULCRUM’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8(c), FULCRUM’S ENTIRE LIABILITY TO CUSTOMER IS
LIMITED SOLELY TO ACTUAL AND DIRECT DAMAGES FINALLY AWARDED BY A COURT OF COMPETENT JURISDICTION IN AN AMOUNT NOT TO EXCEED THE LESSER OF: (A) THE LIMITATION OF DAMAGES SET FORTH IN SECTION 7(b); OR (B) $1,000,000.00. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT WILL FULCRUM BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES PURSUANT TO THIS SECTION 7(c).
8. Indemnification
8.a. Customer will defend, indemnify and hold harmless Fulcrum and Fulcrum’s affiliates, officers, directors, members, managers, equity holders, employees, insurers, legal counsel, representatives, and agents from and against any and all third party claims (including any investigation, action or other proceeding) and all damages, losses, liabilities, costs and expenses (including attorneys’ fees and court costs) that constitute, or arise out of or in connection with: (i) any breach by Customer of Customer’s representations, warranties, agreements and covenants set forth in this Agreement; or (ii) use or misuse of the Software and/or the Services by Customer.
8.b. Solely with respect to the Fulcrum Software, and as Fulcrum’s sole liability and Customer’s exclusive remedy, Fulcrum will defend, indemnify and hold harmless Customer from and against any and all third party claims alleging that the Software provided by Fulcrum under the Agreement infringes the intellectual property rights of such third party; provided, that Customer: (i) promptly notifies Fulcrum of the claim in writing; (ii) cooperates with Fulcrum in the defense of the claim; and (iii) grants Fulcrum sole control of the defense and settlement of the claim. Fulcrum will have no obligations to defend, indemnify or hold Customer harmless pursuant to this Section 8.2 if the infringement claim is caused by (i) Customer’s misuse or modification of the Software and without such misuse or modification the infringement would not have occurred; (ii) Customer’s failure to implement updates or enhancements provided to Customer by Fulcrum within a reasonable period of time; and/or (iii) Customer’s use of the Software in combination with any product not owned or developed by Fulcrum and without such non-authorized combination the infringement would not have occurred. If the Software is, or in Fulcrum’s opinion, likely to be held to be infringing, Fulcrum may, at its expense and sole option, either: (x) procure the right for Customer to continue using it; (y) modify the Software to make it non-infringing, provided the modifications do not materially change the functionality of the Software; or (z) replace the Software with a non-infringing product with materially similar functionality. If Fulcrum determines, in its sole discretion, that x-z are not commercially feasible, Customer shall return the Software and Fulcrum will refund Customer a pro-rated amount of pre-paid fees for such Software (calculated based on a percentage of time remaining in the Initial Term or the Renewal Term then in effect).
8.c. Solely with respect to Third Party Software, and as Fulcrum’s sole liability and Customer’s exclusive remedy, Fulcrum will defend, indemnify and hold harmless Customer from and against any and all third party claims alleging that the Third Party Software provided by Fulcrum in conjunction with the Software under the Agreement infringes the intellectual property rights of such third party; provided, that Customer: (i) is promptly notifies Fulcrum of the claim in writing; (ii) cooperates with Fulcrum in the defense of the claim; and (iii) grants Fulcrum sole control of the defense and settlement of the claim. Fulcrum will have no obligations to defend, indemnify or hold Customer harmless pursuant to this Section 8(c) if the infringement claim is caused by (i) Customer’s misuse or modification of the Third Party Software or the Fulcrum Software and without such misuse or modification the infringement would not have occurred; (ii) Customer’s failure to implement updates or enhancements provided to Customer by Fulcrum within a reasonable period of time; and/or (iii) Customer’s use of the Software including any Third Party Software in combination with any product not owned or developed by Fulcrum and without such non-authorized combination the infringement would not have occurred.
9. Miscellaneous
9.a. Confidentiality.
9.a.1. Each Party will: (A) keep the Confidential Information of the other Party in strict confidence using at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care; (B) use the Confidential Information of the other Party solely in connection with this Agreement; and (C) upon request of the disclosing Party, promptly return to the disclosing Party or destroy all copies of such Party’ Confidential Information. Notwithstanding the foregoing, each Party may disclose Confidential Information of the other Party to the extent the other Party provides its prior written consent, or as required by Law, order, or judgment of any court or governmental body; provided, that the Party subject to compliance gives reasonable notice to the other Party in advance of such disclosure, if not prohibited by Law, and seeks confidential treatment of such information from the entity to which the disclosure is made and discloses only that information which is legally required to be disclosed.
9.a.2. As used herein, “Confidential Information” means all tangible and intangible information concerning or related to a Party’s business, operations, financial condition or prospects either marked confidential or should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure. For the avoidance of doubt, the Software and all Intellectual Property therein is the Confidential Information of Fulcrum.
9.a.3. Assignment. Except as expressly permitted in this Agreement, neither this Agreement, nor any of the rights and obligations created in this Agreement, may be assigned or transferred, in whole or in part, by either Party without the express written consent of the other Party which shall not be unreasonably withheld and for which no additional consideration shall be necessary; provided, however, that either Party may, without such consent, assign this Agreement and its rights and obligations hereunder to: (i) its affiliate; (ii) a purchaser of all or substantially all of the assets of such Party; or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which either Party is participating. Any attempt to assign this Agreement in violation of this provision shall be void. Any permitted assignee shall assume all assigned obligations of its assignor under this Agreement.
9.a.4. Publicity. With Customer’s prior written permission, Fulcrum shall have the right to reference Customer as a customer in advertising, marketing and promotional materials. Subject to the foregoing written approval from Customer, Customer hereby grants to Fulcrum a non-exclusive, royalty-free, paid-up, perpetual, worldwide, assignable, sublicensable license to use Customer’s name, logo, and Customer quotes in advertising, marketing and promotional materials. During the Term and at all times thereafter, Customer will not make any defamatory or disparaging statements (or cause or encourage others to make any such statements) regarding Fulcrum, the Software, the Services, or any other Fulcrum products and services.
9.a.5. Entire Agreement; Amendment; Severability; Waiver. This Agreement (including all Exhibits and Schedules hereto and EULA) constitute the entire agreement of the Parties with respect to the transactions contemplated hereby and supersedes all prior and contemporaneous written and oral agreements, representations and communications between the Parties relating to such transactions. This Agreement may be amended only by a writing signed by both Parties. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, then the balance of this Agreement shall remain enforceable, and such invalid or unenforceable provision shall be enforced to the maximum possible extent. No consent or waiver by either Party with respect to any provision of this Agreement shall be effective unless made in writing by a duly authorized signatory of the Party against which enforcement is sought. The failure or delay of either Party at any time to require full performance of any provision hereof will not affect the right of such Party at a later time to enforce the same provision or any other provision.
9.a.6. Equitable Relief. Each Party acknowledges and agrees that the other Party would be irreparably damaged in the event of a breach of Sections 1(b), 1(c), and 9(b), and that money damages would not be a sufficient remedy for such breach. Accordingly, each Party agrees that the other Party will be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without any requirement to post bond or other security or to prove actual damage or harm. Such remedies shall not be deemed to be the exclusive remedies for any such breach but shall be in addition to all other remedies available at law or in equity.
9.a.7. Governing Law; Consent to Jurisdiction. This Agreement is governed by, and shall be construed and enforced in accordance with, the laws of the State of Texas, without giving effect to any conflict of laws rules, and each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Houston, TX for the purposes of any action or proceeding arising out of or relating to this Agreement. Each Party hereby consents to such jurisdiction and agrees that venue shall lie in the state or federal courts in Houston, TX with respect to any claim or cause of action arising under or relating to this Agreement. Each Party hereby waives any objection to the venue of any action instituted under this Agreement. If any legal action or any arbitration or other proceeding is brought in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
9.a.8. Notices. Any notice, demand or request required or permitted under this Agreement shall be in writing and deemed delivered: (i) when delivered personally (including by recognized national courier); (ii) five (5) business days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid; or (iii) one (1) business day after sent via email. Notices to: (A) Fulcrum shall be addressed as listed in section 9(A)10; and (B) Customer shall be addressed to the mailing address and email address on file with Fulcrum.
9.a.9. Survival. The provisions of Sections 1(b)-(c), 4(c), 5-9 hereof will survive any termination or expiration of this Agreement.
9.a.10. Fulcrum Contact Information
9.a.10.1. Address: Fulcrum Technology Solutions LLC 2603 Augusta Dr. Suite 1325 Houston, Texas 77057
9.a.10.2. Email: backoffice@ftsc.com