Terms and Conditions

These Terms and Conditions (“Terms”) set forth the understanding, terms and conditions that apply to access and use of the Services (as defined below) of Fullcast Inc. (“Provider”) by the customer set forth on an Order Form submitted to Provider (“Customer”). These Terms, together with (i) any order form submitted by Customer and accepted by Provider (“Order Form”), any statement of work submitted to and accepted by Provider (“SOW”), and (iii) Provider’s Privacy Policy found at [INSERT LINK], constitute the “Agreement.” Provider and Customer may be referred to herein individually as a “Party” or collectively as the “Parties.”

This Agreement becomes binding on the Parties upon the earliest of: (1) when Customer or an Authorized User first accesses or uses the Services, (2) when Customer or an Authorized User electronically clicks an “I Accept,” “Sign up”
or similar button or check box referencing this Agreement, or (3) when Customer enters into an Order Form (“Effective Date”).

BEFORE ACCEPTING THIS AGREEMENT, CUSTOMER IS ADVISED TO CAREFULLY READ THE AGREEMENT AND ANY APPLICABLE DOCUMENTATION. BY CLICKING TO ACCEPT THE AGREEMENT, CUSTOMER (1) AGREES TO BE BOUND BY AND BECOMES A PARTY TO THE AGREEMENT AND (2) CONFIRMS THAT THE INDIVIDUAL ENTERING THE AGREEMENT HAS AUTHORITY TO SO BIND CUSTOMER WITHOUT FURTHER ACTION BY CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THE AGREEMENT, CUSTOMER SHOULD NOT CLICK THE “AGREE” BUTTON AND THE SERVICES WILL NOT BE USABLE.

WHEREAS, Customer desires to utilize Provider’s Services as described herein and Provider desires to provide Customer access to such Services, subject to the terms and conditions set forth in the Agreement;

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.

1.1. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

1.2. “Assignees” means Customer’s employees, agents, consultants, contractors or other representatives with respect to whom Customer is using the Services or who are contemplated in any plan, assignment (routing, territory, or otherwise), model or report created by using the Services.

1.3. “Authorized Users” means Customer’s employees (a) who are authorized by Customer to access and use the Services in accordance with the Agreement, (b) who have been made known to, and received access credentials and login details from, Provider, and (b) for whom access to the Services has been purchased hereunder.

1.4. “Customer Data” means information, data, and other content, in any form or medium, that is input, uploaded, or otherwise processed, directly or indirectly by Customer through the Services. Customer Data may, in some situations, include Authorized Users’ Personal Information. Customer Data does not include Resultant Data or
Usage Data.

1.5. “Data Protection Laws” mean collectively any applicable data protection, privacy, or similar laws applicable to the processing of Personal Information in the jurisdiction where Services are performed or used or applicable to the Personal Information processed as part of the Services, if any.

1.6. “Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, data or database protection, or other intellectual property rights Laws and all similar or equivalent rights or forms of protection, in any part of the world.

1.7. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction. “Law” includes all Data Protection Laws.

1.8. “Personal Information” means information which may be used, alone or in conjunction with any other information, to identify a specific person or to make a specific person identifiable, including, without limitation, any (1) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number; (2) unique biometric data, such as fingerprint, voice print, retina, iris image, or other unique physicalrepresentation; (3) unique electronic identification number, address, or routing code; or (4) telecommunication identifying information or access device, in each case to the extent protected under any Data Protection Law.

1.9. “Resultant Data” means data or information related to or derived from Customer Data or an Authorized User’s Personal Information that is processed by Provider in an aggregate, de-identified, or anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

1.10. “Services” means Provider’s software identified on the Order Form and provided on a software-as-a-service basis that is made accessible to Customer through its Authorized Users. “Services” specifically includes access to and use of Provider’s web application and mobile application, if any.

1.11. “Usage Data” means any data or other information processed by or on behalf of Provider relating to the provision, access, use, operation, or performance of the Services by or on behalf of Customer and its Authorized Users, including any data or other information derived therefrom.

2. Services.

2.1. License and Use of Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms of the Agreement, Provider grants to Customer a non-exclusive, limited, revocable, non-transferable, and non-sublicensable right to access and use the Services during the Term, solely for use by Customer and its Authorized Users, where applicable, in accordance with the Agreement. Such use is limited to Customer’s internal use. Customer has and will retain sole responsibility for all access to and use of the Services by any Customer personnel and Authorized Users and will securely administer the distribution and use of all Access Credentials to protect against any unauthorized access to or use of the Services.

2.2. Use Restrictions.

(a) The Services are limited based on the software package Customer orders in the Order Form. Customer acknowledges and can find the resource limits for the applicable Services package at: https://support.fullcast.io/article/495-resource-limits.

(b) Customer may use the Services to create plans, assignments (routing, territory, or otherwise), models and reports that include up to the number of Allowed Assignees set forth in the Order Form. If Customer exceeds such usage, or creates plans, assignments, models or reports with respect to a number of Assignees in excess of the Allowed Assignees, Customer agrees to pay Provider for such excess usage per the Order Form and Section 3 below. More generally, the Services are subject to usage limits specified in Order Forms and the Agreement. If Customer exceeds a contractual usage limit, Provider may work with Customer to reduce Customer's usage so that it conforms to that limit or to execute an Order Form or Statement of Work for additional quantities of the applicable Services or Professional Services promptly upon Provider’s request, and Customer will pay any invoice for excess usage in accordance with these Terms.

(c) Customer will not (and will not allow any Authorized User or third party to): (i) copy, modify, adapt, translate or otherwise create derivative works or improvements of the Services, (ii) reverse engineer, decompile, disassemble, decode, adapt or otherwise attempt to discover the source code of the Services, in whole or in part, (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish or otherwise transfer or make available rights in or to the Services not in accordance with the Agreement, (iv) remove, delete, alter, or obscure any specifications, documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services, including any copy thereof, (v) grant access to the Services to any third party other than an Authorized User, (vi) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services, or (vii) access or use the Services in any manner or for any purpose: (A) that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer); (B) to gather competitive information or compete directly or indirectly with Provider; or (C) that violates any applicable Law. Customer shall comply with all applicable Laws and regulations in Customer’s use of and access to the Services.

2.3. Community Guidelines. The Services may permit Customer and Authorized Users to upload data, information, or other materials, including Customer Data, in a manner that makes such data, information, or other materialspublicly available or accessible to other users of the Services. Customer is solely responsible for any data,
information, or other materials, including Customer Data that it uploads to the Services. Neither Customer nor any Authorized User will use the Services to do any of the following:

(d) Harass, threaten, disrupt, or defraud other users or otherwise create or contribute to an unsafe, harassing,
threatening or disruptive environment;

(e) Make unsolicited offers, advertisements, political campaigns, proposals, or send junk mail or “spam” to other
users;

(f) Impersonate another person or access another user’s account;

(g) Share Provider-issued passwords with any third party or encourage any other users to do so;

(h) Upload any material that is damaging to computer systems or data of Provider or users of the Services (e.g. viruses, corrupted files, or any other similar software files); and

(i) Upload or post any material that is inappropriately violent, unduly graphic, pornographic, bigoted, derogatory, racist, or offensive, or that violates the Intellectual Property Rights of any third party.

Customer acknowledges that Provider has the right, but no obligation, to monitor any data, information, or other materials that Customer or Authorized Users may upload to the Services. Provider may remove any data, information, or other material that Provider determines, in its sole discretion, violates the foregoing requirements; provided, that Provider takes no responsibility and assumes no liability for any data, information, or other material that is uploaded to the Services by Customer or any Authorized User.

2.4. Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Services to its customers; (ii) the competitive strength of or market for the Services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.

2.5. Suspension or Termination of Services. Provider may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, Authorized Users’, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if Provider reasonably believes that there has been a breach of Customer’s obligations under the Agreement, including an Authorized User’s breach, a security breach, a violation of Law, an Authorized User’s request to opt-out of the Services or exercise of any right under Data Protection Laws, or any other unauthorized use of the Services. This Section does not limit any of Provider’s other rights or remedies, whether at Law, in equity, or under the Agreement.

2.6. Technical Support Services; Availability. Provider shall host, serve, distribute, and enable the availability of the Services and ensure that the same are available to Customer and its Authorized Users in a commercially reasonable manner. Provider will provide the support and maintenance detailed here: [ENTER LINK FOR WEB SUPPORT AND MAINTANENCE TERMS]. Further, Provider will provide the service level criteria and performance metrics detailed here: [ENTER LINK FOR SERVICE LEVEL POLICY].

2.7. Trial Products and Beta Products.

(a) If Provider offers Customer a trial or evaluation of any Services or trial products (“Trial Products”), Customer may access and use the Trial Products for thirty (30) days, or such other duration specified in the Order Form.

(b) From time to time, Provider may invite Customer to try a beta product (“Beta Product”), which Customer may accept or decline in Customer’s sole discretion. Customer shall comply with any testing and usage guidelines that Provider provides in connection with Customer’s access and use of a Beta Product and will make reasonable efforts to provide feedback. Provider may discontinue a Beta Product at any time in its sole discretion and there is no guarantee that a Beta Product will be incorporated into future versions of the Provider’s Services.

(c) Trial Products and Beta Products are provided only for internal testing and evaluation and solely for Customer’s own internal purposes.

(d) TRIAL PRODUCTS AND BETA PRODUCTS ARE PROVIDED “AS IS” WITHOUT ANY SUPPORT, INDEMNITY, LIABILITY, OR REMEDY OF ANY KIND. TO THE EXTENT ALLOWED BY APPLICABLE LAW, PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY, CONDITION, OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF TRIAL PRODUCTS OR BETA PRODUCTS.

(e) The terms in this Section apply, and prevail over any conflicting terms in this Agreement, with respect to all access to and use of Trial Products or Beta Products.

(f) CUSTOMER ACKNOWLEDGES THAT PROVIDER IS NOT LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF A TRIAL PRODUCT, WHETHER SUCH DAMAGES BE GENERAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES).

2.8. Professional Services. Provider will provide any professional services, including without limitation, customization, implementation, or other services (“Professional Services”) that are described in an applicable SOW executed between the Parties from time to time. Provider will diligently perform the Professional Services in accordance with the applicable SOW, including any specifications in the SOW.

(a) Non-Exclusivity of Professional Services. Customer acknowledges that Provider may provide services similar to the Professional Services on behalf of other Provider customers. Customer agrees that Provider may work for other customers without restriction, even if work is done for a potentially competing company or individual. Nothing in the Agreement may be construed to limit Provider’s business, including the provision of the Services to other Provider customers.

(b) Ownership. Notwithstanding anything to the contrary in the Agreement or any SOW, Provider retains ownership of all of Provider’s Intellectual Property Rights directly or indirectly related to the Professional Services performed under any SOW, whether now existing or whether conceived, developed, or reduced to practice, solely or jointly with Customer, in connection with the Professional Services or otherwise related to Provider’s Services under this Agreement.

3. Fees and Payment.

Customer shall pay Provider the fees set forth in the Order Form or any applicable SOW, including any expenses or costs of the Services or Professional Services that Provider passes through to Customer. Unless otherwise set forth in the Order Form or applicable SOW, invoices are due and payable in United States dollars within one (1) day after the invoice date, without deduction or setoff. For the avoidance of doubt, if Customer’s usage of the Services exceeds the number of Allowed Assignees set forth on the Order Form, Customer agrees to pay to Provider the Excess Assignee Fee per Assignee for each month in which such excess usage occurs. Such excess usage fees will be aggregated and invoiced by Provider on a quarterly basis. Customer shall pay or reimburse Provider for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of or related to the Agreement or the transactions contemplated hereby, other than net income taxes imposed on Provider. Any amount not paid within thirty (30) days of its due date is subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is more, determined and compounded daily from the date due until the date paid.