Version 1.3
Last Updated: July 11, 2023
Unless otherwise indicated, these Terms of Use (“Terms of Use”) apply to (i) your use of and/or access to the Fulcra Dynamics platform, including http://fulcradynamics.com, any other websites (collectively, the “Website”) which are owned or operated by Fulcra Dynamics Corporation or its affiliates (collectively, “Fulcra”, “we,” “us,” or “our”), including any portions thereof available only to subscribers; (ii) your use of and/or access to the mobile phone applications which we may own or operate currently or in the future (collectively, the “Mobile App”) and (iii) your use of and or access to any content or information and other online or mobile-enabled technology, digital tools, physical devices and other confidential information, intellectual property, reports, services and products provided by us (together with the Website and the Mobile App, collectively, the “Services”).
These Terms of Use form an integral part of a Personal Operating Services Agreement or any other agreement between you and Fuclra for the use of Fulcra’s Services, or govern your use of Fulcra’s services in the absence of any such agreement. In the event that a corporation or other entity has contracted with Fulcra on behalf of an individual for that individual’s use of the Services, both that entity and the individual must agree to be bound by these Terms of Use, and the use of “you” and “your” herein shall be construed to apply to both the individual and the entity.
For purposes of these Terms of Use, “affiliates” shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with Fulcra. The term “Mobile App” shall refer to any access you may have to any Fulcra mobile application or service prior to becoming a paying Fulcra customer as well as access to the paid portions of Fulcra mobile applications via the Premium Services (hereinafter defined).
We are committed to protecting your privacy and security. For more information, you should review our Privacy Policy, located at https://www.fulcradynamics.com/legal/privacy-policy, and our Terms and Conditions, located at https://www.fulcradynamics.com/legal/terms-conditions, both of which are incorporated herein by this reference. In the event of any conflict between these Terms of Use, and the Privacy Policy and/or the Terms and Conditions, these Terms of Use, as modified by any Personal Operating System Services Agreement to which they are attached, shall govern.
IF YOU ARE NOT WILLING TO BE OR CANNOT BE BOUND BY ALL OF THESE TERMS OF USE, INCLUDING WITHOUT LIMITATION THE FOLLOWING AGREEMENT AND ACKNOWLEDGEMENT, THEN DO NOT ACCESS, BROWSE OR USE THE SERVICES. MOREOVER, FULCRA DOES NOT AND WILL NOT GRANT YOU ANY RIGHT OR LICENSE TO ACCESS, BROWSE OR THE SERVICES WITHOUT YOUR WILLINGNESS AND ABILITY TO BE BOUND BY ALL OF THE TERMS OF USE OF THIS AGREEMENT.
IF YOU DO NOT ABIDE BY THE PROVISIONS OF THESE TERMS OF USE, EXCEPT AS WE MAY OTHERWISE PROVIDE FROM TIME TO TIME, YOU AGREE THAT WE MAY IMMEDIATELY DEACTIVATE OR DELETE YOUR USER ACCOUNT AND ALL RELATED INFORMATION AND FILES IN YOUR USER ACCOUNT AND/OR RESTRICT ANY FURTHER ACCESS TO SUCH INFORMATION AND/OR FILES, OR OUR SERVICES, WITH OR WITHOUT NOTICE.
You must exercise caution, good sense and sound judgment in using the Services. You are prohibited from violating, or attempting to violate, the security of the Services. Any such violations may result in criminal and/or civil penalties against you. Fulcra will investigate any alleged or suspected violations and if a criminal violation is suspected, we may contact and/or cooperate with law enforcement agencies in their investigations.
By using the Services, you accept these Terms of Use and agree to be legally bound and to abide by the terms, conditions, and notices contained or referenced herein, just as if you had signed them.
The protection of your sensitive or confidential personal information and data, whether submitted by you individually or via the Services’ connections to third party software, applications or products is Fulcra’s highest priority. By engaging Fulcra’s Services, including downloading any Fulcra Mobile App prior to becoming a Fulcra customer, you agree and understand that Fulcra may store, share, process and use information and/or data collected from you directly, from individuals sharing information or data at your direction, or via the Services’ connections to third party software, applications or products.
Notwithstanding anything to the contrary in this agreement or in any other agreement between you and Fulcra, Fulcra will make its best efforts to protect the security, privacy and confidentiality of your information and data, and in all cases process your information in accordance with our Privacy Policy.
Fulcra may work with other companies that help provide products and services to you, such as third party data providers or platforms, sensor equipment vendors, or shipping carriers and you hereby authorize and direct Fulcra to share that and only that limited information necessary with these companies for this purpose.
You and Fulcra may collectively decide to engage members of your team or family to further enable your use of the Services, in which case you authorize and direct Fulcra to share that limited data and information that is necessary to enable the outcomes defined by you and Fulcra with those individuals.
From time to time, we may, in our sole discretion, change, modify, supplement or remove portions of these Terms of Use (“Additional Terms”). Such Additional Terms shall become effective upon posting by the Company on the Website, the Mobile App, via the Service or sending you an email or other notification. We will notify you of any Additional Terms in advance. You will be deemed to have agreed to such Additional Terms by your decision to continue accessing the Mobile App or the Website or otherwise using any of the Services following the date in which such Additional Terms become effective.
In our sole discretion we may discontinue, modify or alter any aspect of the Services provided to you, including, but not limited to, (i) restricting the time the Services are available, (ii) restricting the amount of use permitted, (iii) restricting or terminating any user’s right to use the Services and (iv) changing any feature or functionality provided by the Services. In the event of any such change, we will notify you in advance. You agree that any termination or cancellation of your access to, or use of, the Services may be effected without prior notice. Further, you agree that we shall not be liable to you or any third-party for any termination or cancellation of your access to, or use of our Services. In the event that we terminate your access to the Services, we will refund pro rata any portion of the fees paid up to that time by you, and stop charging you for the Services, which shall constitute our sole liability to you related to the termination of your access to the Services.
You may access the Mobile App which can be downloaded from an applications store or applications distribution platform, such as the Apple Mobile App Store or Google Play, or the Mobile App may be provided via a platform such as Apple’s TestFlight (the “Mobile App Provider”).
You acknowledge and agree that:
Fulcra provides the services in part for you to track, manage, and share your wellness-related information.
THE SERVICES AND ANY RESULTS OR CONTENT DISPLAYED VIA THE SERVICES, WHETHER PROVIDED BY FULCRA OR THIRD PARTIES, DO NOT PROVIDE MEDICAL ADVICE AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR (I) ADVICE FROM YOUR DOCTOR OR OTHER MEDICAL PROFESSIONALS, OR ANY DIAGNOSIS OR TREATMENT OR (II) A VISIT, CALL OR CONSULTATION WITH YOUR DOCTOR OR OTHER MEDICAL PROFESSIONALS. THE SERVICES DO NOT AND ARE NOT INTENDED TO TREAT OR PREVENT ANY MEDICAL CONDITION. ALL CONTENT AVAILABLE THROUGH THE SERVICES IS FOR GENERAL INFORMATIONAL PURPOSES ONLY. USE OF THE SERVICES, OR COMMUNICATION WITH US VIA THE INTERNET, E-MAIL OR OTHER MEANS, DOES NOT CREATE ANY DOCTOR-PATIENT RELATIONSHIP.
USE OF THE SERVICES IS NOT FOR MEDICAL EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911.
If you have any health related questions, please call or see your doctor or other healthcare provider. You should never disregard medical advice or delay in seeking medical advice because of any content presented on the Services, and you should not use the Services or any content on the Services for diagnosing or treating a health problem. You should always consult a qualified and licensed medical professional prior to beginning or modifying any diet, exercise or athletic program. You agree that your athletic activities carry certain inherent and significant risks of bodily injury, death or property damage, and that you voluntarily assume all known and unknown risks associated with these activities.
Fulcra’s Services and FDE team collect and analyze numerous types of data on your behalf, but Fulcra is not responsible for monitoring this data in real time. Fulcra may not be relied upon to alert you to data or patterns in your data that represent a matter that you may otherwise have wished to be alerted to in real time, and is not responsible for any negative outcomes that may result from not having been so alerted.
Use of our Services is on an invite-only basis and we, in our sole discretion, may determine if an individual or entity contracting with us on behalf of that individual meets our eligibility requirements. We may determine after entering into an agreement with an individual or entity that it or they are no longer suitable or no longer meet our eligibility requirements. We do not permit individuals under 18 years of age to become registered users of our Services. By using the Services, you represent and warrant that you are at least 18 years of age and have the right, authority and capacity to enter into these Terms of Use and to abide by the terms and conditions of these Terms of Use.
Our Services consist of Premium Service and typically requires a fee, which is either paid (i) by the user (“Personal Premium Service”) or (ii) by a third party on behalf of the user (“Business Premium Service”).
You are responsible for all charges and fees associated with connecting to and using the Services, including the Website and/or Mobile App, including without limitation all telephone access lines (including mobile data and data roaming charges, when applicable), telephone and/or internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access our Website and/or Mobile App.
Personal Premium Service is not transferable to any individual other than the individual for whom it was originally purchased. Business Premium Services are purchased by a third party on behalf of an individual user, and are not transferable to any other individual or user.
If you are a subscriber to our Premium Service, you further agree as follows:
For Business Premium Services users, the Business Customer paying for your Business Premium Service subscription controls such an account (which may be different from your personal account) and may terminate your access to it. You agree that we will not be liable to you or any third-party for any termination or cancellation of your access to, or use of, our Premium Services that were originally provided to you by such Business Customer. If you had Business Premium Service subscriptions paid through a Business Customer but you are no longer eligible to receive such benefit from the Business Customer, it is also possible that your Business Premium Service account will terminate with us, and you will have to sign up for a new account.
In the event that a Business Customer has purchased Business Premium Service on an individual user’s behalf, that Business Customer agrees that any data collected from that individual user shall remain the property of that individual user, who shall retain all rights to that data granted to a customer or user hereunder.
The fees you will be charged are set forth in your Personal Operating System Services Agreement. In the absence of such an agreement or after the expiration of the term of any such agreement, we reserve the right to modify fees upon reasonable advance notice communicated to you through a posting on the Website and/or Mobile App or such other means as we may deem appropriate from time to time (including electronic mail or conventional mail). We further reserve the right to revise the terms of the fee charge, cancellation and refund policies, upon reasonable advance notice communicated to you through a posting on the Website and/or Mobile App or such other means as we may deem appropriate from time to time (including electronic mail or conventional mail).
In connection with your use of certain features of the Services, you may be required to complete a registration process contained within the Services, as well as to provide certain other information via registration forms and consultation with Fulcra team members. You represent and warrant that all user information you provide in connection with your use of the Services will be current, complete and accurate. As a registered user of the Services, you are entirely responsible for maintaining the confidentiality of your user account information. You may not use the account or user name of any other member at any time. You must notify us immediately in the event of any known or suspected unauthorized use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your or anyone else’s user account information.
You are also entirely responsible for any and all activities which occur under your user account. We will not be liable for any loss that you incur as a result of someone else using your account, either with or without your knowledge. You may also be held liable for any losses incurred by Fulcra, its affiliates, officers, directors, employees, consultants, agents and representatives due to someone else’s use of your account.
As a subscriber to our Premium Services, you further agree as follows:
For purposes of your use of the Premium Service including identification and billing, you agree to provide us with true, accurate and complete information as required by the subscription or sign up process to the Premium Service (“Subscription Data”). We may collect different data depending on whether you are a Personal Premium Service user or Business Premium Service user. Please refer to our Privacy Policy for more detailed information on the types of information we collect. You agree to maintain and promptly update the Subscription Data and any other information you provide to us for accuracy. Without limiting any other provision of these Terms of Use, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your user account or subscription and refuse any and all current or future use by you of our Services (or any portion thereof). You are obligated to check whether your Subscription Data is current and accurate, and, if not, to correct or update your Subscription Data.
You agree not to register or subscribe for more than one account, create an account on behalf of someone else, or create a false or misleading identity on this Website. If your registration or subscription is revoked for any reason (other than in cases where you are switching over from Business Premium Services to Personal Premium Service and vice versa), you agree not to register or subscribe again with our Services using another user name or through any other means. If we have reason to suspect, in our sole discretion, that your account has previously been terminated, we reserve the right to terminate any new accounts you have registered without any notice to you, or to exercise any other remedies available to us under these Terms of Use or by law. Notwithstanding the foregoing, provided you have the proper authorization and provisioning of the Services, this provision shall not prevent the creation of master accounts and Subsidiary Accounts (as defined below).
Your agreement with Fulcra and the provision of the Services to you may require the creation of “Subsidiary Accounts” with members of your team, family, or other individuals for the purposes of instrumentation or information sharing. As part of that process, each of those individuals will be required to agree to be bound by these Terms of Use, including the confidentiality provisions thereof.
Between us and you, you are and shall remain the owner of any information that you provide us or submit to the Service, whether by direct entry, collection via the Mobile App, submission, email or otherwise, including data, questions, comments, forum communications, or suggestions (collectively, “Submissions”).
You hereby grant to Fulcra a royalty-free, perpetual, irrevocable, sublicensable, assignable, non-exclusive right (including any moral rights) and license (as well as consent) to to edit, duplicate, or alter any Submissions or other content you provide to Fulcra in any manner for the purpose of providing or improving the Services.
Notwithstanding anything to the contrary set forth herein, each party agrees that it will not reveal, sell, or otherwise convey the data gathered by or generated by the Services to any third party without the consent of the other party hereto. Notwithstanding the foregoing, Fulcra reserves the right to use such data internally, including to improve customer offerings, so long as the specific information gathered or generated in relation to the Services is not revealed explicitly or implicitly byway of such offerings.
Each party acknowledges that any such information is highly confidential, and that the disclosure of such information by either party to any third party would cause irreparable harm to the other party, for which such harmed party may not have an adequate remedy at law. The prohibitions contained within this paragraph shall survive the termination of this Agreement, and continue for an additional 2 years thereafter
Fulcra shall have the right, in its sole discretion, to edit, duplicate, or alter the Submission in any manner for any purpose for the purpose of providing or improving the Services, and you irrevocably waive any and all so-called moral rights you may have in the Submission. You further agree that you shall have no right of approval and no claim to compensation in connection with the Submission.
If a Business Customer engages Fulcra to provide Business Premium Services on your behalf, your FDE Team Member may provide information agreed upon with you as an individual in advance to that Business Customer regarding your achievement of your Fulcra goals, or other relevant information, but only with your prior consent. Business Customers may not access a Fulcra user’s information without that user’s consent, regardless of whether or not they have engaged Fulcra on that user’s behalf.
You represent and warrant that, when using the Services, you will obey the law and respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights, or rights or publicity or privacy, or in violation of any applicable law or regulation.
YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE SERVICES. YOU BEAR THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.
Subject to your continued compliance with the Terms of Use, including without limitation the timely payment of all applicable fees, we grant you a non-exclusive, non-transferable, non-sublicensable, fully revocable, limited license to access and use our Services (whether through the Website or by downloading and installing the Mobile App, including any updates and bug fixes). Your use is limited for your personal, noncommercial use only.
The Services, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of Fulcra. Furthermore, except for the limited rights granted in this section, you will not (and will not encourage or assist any third party to): (i) modify, alter, tamper with, repair or otherwise create derivative works of the Services or any software or technology included in or used or distributed by Fulcra to provide the Services; or (ii) reverse engineer, disassemble or decompile the Services, or attempt to discover or recreate the source code for the Services.
These Terms of Use shall remain in full force and in effect for the term of your Personal Operating System Services Agreement (including any renewals or extensions thereof), or for as long as you continue to make use of any aspect of our Services (including our Website, Mobile Apps and FDE team), whichever is longer, and will be deemed to have been in full force and effect from the time that you first accessed our Services.
We may terminate your use of, or access to, the Services in accordance with these Terms of Use, or immediately in the event of any misuse or suspected misuse of the Services.
Termination of these Terms of Use automatically terminates all rights and licenses granted to you under these Terms of Use, including all rights to use the Services, except that all terms that by their nature may survive termination shall be deemed to survive such termination (including, without limitation, intellectual property, disclaimers, limitations of liability, arbitration, the Your Information section, governing law and venue). Subsequent to termination, Fulcra reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Services, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
YOU ACKNOWLEDGE AND AGREE THAT, IN PERMITTING YOU TO UTILIZE THE SERVICE, FULCRA IS ENTRUSTING YOU WITH SENSITIVE OR COMPETITIVE CONFIDENTIAL COMPETITIVE INFORMATION REGARDING, REFLECTING OR OTHERWISE RELATING TO FULCRA’S RESEARCH AND DEVELOPMENT, PRODUCT DEVELOPMENT PLANS, AND MARKETING AND OTHER BUSINESS STRATEGIES, INCLUDING ANY AND ALL INTELLECTUAL PROPERTY OF FULCRA (COLLECTIVELY, “CONFIDENTIAL INFORMATION”). YOU AGREE THAT ALL INFORMATION RELATING TO THE SERVICE FURNISHED TO, ACCESSED BY OR OTHERWISE LEARNED BY YOU CONSTITUTES CONFIDENTIAL INFORMATION PURSUANT TO THE AGREEMENT AND MAY BE USED BY YOU SOLELY TO ACCESS THE SERVICE IN ACCORDANCE WITH THIS AGREEMENT. YOU AGREE THAT YOU WILL NOT USE CONFIDENTIAL INFORMATION IN ANY WAY, FOR YOUR OWN ACCOUNT OR THE ACCOUNT OF ANY THIRD PARTY. YOU AGREE NOT TO DISCLOSE ANY CONFIDENTIAL INFORMATION TO ANY OTHER PERSON OR ENTITY WITHOUT FULCRA’S PRIOR WRITTEN APPROVAL. YOU AGREES TO INFORM FULCRA PROMPTLY OF ANY ACTUAL OR SUSPECTED UNAUTHORIZED DISCLOSURE OR USE OF CONFIDENTIAL INFORMATION IN VIOLATION OF THESE TERMS OF USE.
Certain content provided in the Website and/or Mobile App include links to, or data or information from, websites or services of third parties (“External Content Providers”), some of whom may have established relationships with Fulcra and some of whom may not. We do not have control over the content and performance of External Content Providers.
FULCRA HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OR OTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH EXTERNAL CONTENT PROVIDERS AND DOES NOT ENDORSE (AND IS NOT RESPONSIBLE OR LIABLE FOR) ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH THIRD PARTY WEBSITES. ACCORDINGLY, FULCRA DOES NOT REPRESENT, WARRANT OR ENDORSE ANY EXTERNAL CONTENT PROVIDER, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH EXTERNAL CONTENT PROVIDERS. FULCRA DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF OR RELIANCE ON, ANY CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER RESOURCES AVAILABLE ON ANY EXTERNAL CONTENT PROVIDERS (REGARDLESS OF WHETHER WE DIRECTLY OR INDIRECTLY LINK TO SUCH CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER RESOURCES).
YOU AGREE THAT, WHEN LINKING TO OR OTHERWISE ACCESSING OR USING AN EXTERNAL CONTENT PROVIDER, YOU ARE RESPONSIBLE FOR: (I) TAKING PRECAUTIONS AS NECESSARY TO PROTECT YOU AND YOUR COMPUTER SYSTEMS FROM VIRUSES, WORMS, TROJAN HORSES, MALICIOUS CODE AND OTHER HARMFUL OR DESTRUCTIVE CONTENT; (II) ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT IS OBSCENE, INDECENT, OFFENSIVE, OR OTHERWISE OBJECTIONABLE OR UNLAWFUL, OR THAT CONTAINS TECHNICAL INACCURACIES, TYPOGRAPHICAL MISTAKES AND OTHER ERRORS; (III) ANY DOWNLOADING, USE OR PURCHASE OF MATERIAL THAT VIOLATES THE PRIVACY OR PUBLICITY RIGHTS, OR INFRINGES THE INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS OF THIRD PARTIES, OR THAT IS SUBJECT TO ADDITIONAL TERMS OF USE, STATED OR UNSTATED; (IV) ALL FINANCIAL CHARGES OR OTHER LIABILITIES TO THIRD PARTIES RESULTING FROM TRANSACTIONS OR OTHER ACTIVITIES; AND (V) READING AND UNDERSTANDING ANY TERMS OF USE OR PRIVACY POLICIES THAT APPLY TO THOSE EXTERNAL CONTENT PROVIDERS.
You acknowledge that our Services contain content, information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, analyses, data, notes, drawings, articles and other materials (hereinafter defined) (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed.
All Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and we own a copyright in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on the Services are trademarks of their respective owners. The Fulcra Marks (hereinafter defined) are tradenamed and the registered trademark and service mark of Fulcra Dynamics Corporation.
You may request to make use of or display certain portions of the Content relating to your use of the Services by contacting your FDE, provided that any display or use of Fulcra Content must be credited as follows:
“Content and analysis courtesy of Fulcra Dynamics Corporation, www.fulcradynamics.com”
Our commercial partners, suppliers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on our Services. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer, phone, tablet or any other mobile device, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other applications or networked computer environment is strictly prohibited unless you receive our prior written consent.
We may at any time suspend your use of the Services and/or remove or disable any Content as to which we reasonably and in good faith believe is in violation of any of these Terms of Use. We will provide you with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order or prevent imminent harm to the Services or any third party, in which case we will notify you to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable thereafter.
FULCRA EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM OR IN CONNECTION WITH YOUR USE OF THE SERVICES AND PARTICIPATION IN ANY OTHER ACTIVITIES OFFERED IN THE SERVICES, INCLUDING, WITHOUT LIMITATION, YOUR INTERACTIONS WITH ANY FDE TEAM MEMBER OR OTHER INDIVIDUAL YOU ENGAGE TO AID IN YOUR USE OF THE SERVICES. YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES.
FULCRA, ON BEHALF OF ITSELF AND ITS AFFILIATES AND ANY OF ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS PROVIDED IN THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, FULCRA, ON BEHALF OF ITSELF, AND ITS AFFILIATES AND ANY OF ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT. NEITHER FULCRA, ANY OF ITS AFFILIATES, NOR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THE APPLICATIONS OR ANY FUNCTION CONTAINED IN THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APPLICATIONS OR THE SERVERS THAT MAKE THE APPLICATIONS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY PRODUCT, OFFERING, CONTENT AND MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR DEVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL.
NEITHER FULCRA, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, BUSINESS CUSTOMERS, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS IN THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS OF USE.
Certain features, aspects, software products and services offered through the Services are provided, in whole or in part, by third parties (“Third-Party Services” as provided by “Third-Party Service Providers”). In order to use Third-Party Services, you may be required to enter into additional terms and conditions with Third-Party Service Providers. Our Terms of Use apply only to the Services, and not to the apps of any other person or entity, and your right to use such Third Party Software as part of the Services is subject to and governed by the terms and conditions of the third party license applicable to such Third-Party Services. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products or other materials on or available from such apps or resources. In the event of a conflict between the terms of these Terms of Use and the terms of such third party licenses, the terms of the third party licenses shall control with regard to your use of the relevant Third Party Service.
You further acknowledge and agree that a Third-Party Service Provider may collect and use certain information about you, which may include your personal information and (“Protected Health Information”). Any exchange of data, including Protected Health Information, or other interaction between you and a provider of a Third Party Services is solely between you and the Third-Party Service Provider. Prior to providing information to any Third-Party Service Provider, you should review their privacy policy. If you do not understand or do not agree to the terms of a Third-Party Service Provider’s privacy policy, you should not use the related third-party services.
FULCRA DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM (I) YOUR USE OF OR RELIANCE ON, ANY CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER RESOURCES AVAILABLE ON ANY SUCH SERVICES OR RESOURCES (REGARDLESS OF WHETHER WE DIRECTLY OR INDIRECTLY LINK TO SUCH CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER RESOURCES) OR (II) YOUR INFORMATION COLLECTED OR USED BY THIRD-PARTY SERVICE PROVIDERS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL FULCRA, ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE WEBSITE, OUR APPLICATIONS OR APPLICATIONS LINKED TO OUR APPLICATIONS, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICES; OR (F) ANY OTHER MATTER RELATING TO THE SERVICES.
YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY FULCRA, ITS AFFILIATES AND ANY OF FULCRA’S AND ITS AFFILIATES’ OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.
YOU UNDERSTAND AND AGREE THAT THE CANCELLATION OR TERMINATION OF YOUR SUBSCRIPTION IS YOUR SOLE RIGHT AND REMEDY WITH RESPECT TO ANY DISPUTE WITH US INCLUDING, WITHOUT LIMITATION, ANY DISPUTE RELATED TO, OR ARISING OUT OF: (I) THESE TERMS OF USE OR OUR ENFORCEMENT OR APPLICATION THEREOF; (II) ANY PRACTICE OR POLICY OF FULCRA INCLUDING THESE TERMS OF USE AND OUR PRIVACY POLICY, OR OUR ENFORCEMENT OR APPLICATION OF THESE POLICIES; (III) THE CONTENT AVAILABLE THROUGH THE WEBSITE AND/OR APPLICATIONS OR ANY CHANGE IN CONTENT PROVIDED THROUGH THE WEBSITE AND/OR APPLICATIONS THROUGH THE SERVICES; (IV) YOUR ABILITY TO ACCESS AND/OR USE OUR WEBSITE AND/OR APPLICATIONS; OR (V) THE AMOUNT OR TYPES OF OUR FEES OR CHARGES, SURCHARGES, APPLICABLE TAXES, OR BILLING METHODS, OR ANY CHANGE TO OUR FEES OR CHARGES, APPLICABLE TAXES, OR BILLING METHODS.
THE MAXIMUM LIABILITY OF FULCRA AND ITS AFFILIATES AND ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR SERVICES. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN FULCRA AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES, OR THESE TERMS OF USE MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THESE TERMS OF USE
Without limiting any indemnification provisions of these Terms of Use, you agree to indemnify, hold harmless and, at our option, defend Fulcra and our affiliates, and our and their respective officers, directors, members, employees, stockholders, managers, agents and representatives (collectively, “Fulcra Indemnified Parties”) from any and all third party claims, actions, demands, causes of action, liability, damages and/or costs (including, but not limited to, reasonable attorneys’ fees and expenses) (collectively, “Claims”) arising from (i) your improper use of the Services or our products or offerings, (ii) your violation of these Terms of Use, (iii) your provision to Fulcra or any of the Indemnified Parties of information or other data, (iv) your infringement or alleged infringement, or the infringement or use (or alleged infringement or alleged use) by any other user of your account, of any intellectual property or other right of any person or entity, or (v) your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation.
The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify or hold harmless the Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
We may send the following to you by email or by posting them on the Website and/or the Mobile App: these Terms of Use, including legal disclosures; future changes to these Terms of Use, Privacy Policy, and other notices, legal communications or disclosures and information related to the Services. Such communications are part of the Services which you cannot opt out of receiving.
In using the Services, you may receive periodic electronic communications from Fulcra regarding the Services, such as new product offers and other information regarding the Website and/or the Mobile App, which are part of the Services and which you cannot opt out of receiving.
You may also receive periodic promotions and other offers or materials Fulcra believes might be of interest to you. You can opt-out of receiving these promotional messages at any time by (a) following the unsubscribe instructions contained in each message; or (b) changing the messaging preferences in your account.
If you have a Business Premium Service account (e.g., your Premium Services were purchased by a Business Customer and were offered to you free of charge by such Business Customer), the Business Customer paying for your Business Premium Services may also send periodic electronic communications or post materials on our Mobile App, subject to their applicable terms and conditions and/or privacy policy.
If you later decide that you do not want to receive future communications electronically, please send an email to suport@fulcradynamics.com or a letter to Fulcra Dynamics Corporation, Attention: Customer Service, 346 Union St., Portsmouth, NH 03801. Your withdrawal of consent shall be effective within a reasonable time after we receive your withdrawal notice described above. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms provided to, and electronically signed by you prior to the effective date of your withdrawal. If you withdraw your consent to receive communications electronically, we may terminate your account and/or access to the Service (or any part thereof).
These Terms of Use shall be governed by and construed in accordance with the laws of the State of New Hampshire, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of the Services or these Terms of Use shall be filed only in the state or federal courts located in Rockingham County in the State of New Hampshire and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
If we, in our sole discretion, take legal action against you in connection with any actual or suspected breach of these Terms of Use, we will be entitled to recover from you as part of such legal action, and you agree to pay, our reasonable costs and attorneys’ fees incurred as a result of such legal action. The Fulcra Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of these Terms of Use.
Any action, controversy, dispute, or claim arising out of, in connection with, or in relation to, the interpretation, performance or breach of this Agreement, including, without limitation, the validity, scope, and enforceability of this section, may at the election of any party, be solely and finally settled by arbitration conducted in Rockingham County, New Hampshire, by and in accordance with the then existing rules for commercial arbitration of the American Arbitration Association, or any successor organization and with the Expedited Procedures thereof (collectively, the “Rules”). Each of the parties hereto agrees that such arbitration shall be conducted by a single arbitrator selected in accordance with the Rules; provided that such arbitrator shall be experienced in deciding cases concerning the matter which is the subject of the dispute.
Each of the parties agrees that if possible, the award shall be made in writing no more than thirty (30) days following the end of the proceeding. Any award rendered by the arbitrator(s) shall be final and binding and judgment may be entered on it in any court of competent jurisdiction. Each of the parties hereto agrees to treat as confidential the results of any arbitration (including, without limitation, any findings of fact and/or law made by the arbitrator) and not to disclose such results to any unauthorized person. The parties intend that this agreement to arbitrate be valid, enforceable and irrevocable. In the event of any arbitration with regard to this Agreement, each party shall pay its own legal fees and expenses, provided, however, that the parties agree to share the cost of the Arbitrator’s fees.
Notwithstanding anything contained herein, including the Arbitration section hereof, Fulcra may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
During the Term of any Personal Operating System Services Agreement or other agreement into which these Terms of Use are incorporated, Fulcra shall make commercially reasonable efforts to ensure the availability of the Services to you, but makes no guarantees as to that availability.
If any provision of these terms shall be found by a court of competent jurisdiction to be unlawful, invalid, void or voidable, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms of Use, along with any other agreement into which they are incorporated (including but not limited to any Personal Operating System Services Agreement) are the entire agreement between you and us relating to the subject matter herein. We may assign our rights and obligations under these Terms of Use. These Terms of Use will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms of Use, or to exercise any right under the Terms of Use, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
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