Terms of Service

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Fulcrum Alacrity LLC (“Fulcrum”) provides engineering, design, business development and advisory services to you (“Customer”) on the terms and conditions in these terms of service (these “Terms”), effective as of the date of the invoice provided (the "Effective Date"), is by and between Fulcrum and the Customer identified in the invoice.

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A. Services.

 

Fulcrum shall provide to Customer the advisory services that relate to the operation of telecommunications businesses (the "Services"). Subject to the Customer’s discretion, Customer shall (a) provide Fulcrum with access to Customer's premises, office accommodation, and other facilities as may reasonably be required by Fulcrum for the purposes of performing the Services; (b) respond promptly to any Fulcrum request for information or approvals, subject to Customer's reasonable discretion, that Fulcrum requires to perform the Services.

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B. Term and Termination.

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1. Termination for Convenience. Either party, in its sole discretion, may terminate these Terms, in whole or in part, at any time without cause, by providing at least five days' prior written notice to the other party.

2. Termination for Cause. Either party may terminate these Terms if the other party breaches these Terms.

3. Effects of Termination or Expiration. Upon expiration or termination of these Terms for any reason, (a) Fulcrum shall: (i) deliver to Customer all documents, work product, and other materials, whether or not complete, prepared by or on behalf of Fulcrum in the course of performing the Services for which Customer has paid; (ii) return to Customer all Customer-owned property, equipment, or materials in its possession or control; (iii) remove any Fulcrum-owned property, equipment, or materials located at Customer's locations; and (iv) provide reasonable cooperation and assistance to Customer. 

4. Term; Renewal. These Terms shall commence as of the Effective Date and shall continue thereafter until the completion of the Services (the "Term"), unless sooner terminated pursuant to this Section.

    

C. Fees and Expenses; Payment Terms.

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1. In General. For Services provided on a time and materials basis, Customer shall pay fees (the "Fees") calculated in accordance with Fulcrum's hourly fee rates as set forth in the invoice.

2. Invoicing and Payment. Fulcrum shall issue invoices to Customer on a monthly basis in arrears for its fees for the immediately preceding month for time and materials based Services. If Customer fails to timely pay an invoice, Fulcrum may charge interest on the maximum amount permitted by law from the date such payment was due until the date paid; and suspend performance for all Services until payment has been made in full.

3. Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder except for any taxes imposed on, or with respect to, Fulcrum's income, revenues, gross receipts, personnel, or real or personal property or other assets.

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D. Intellectual Property.

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1. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Customer under these Terms or prepared by or on behalf of Fulcrum in the course of performing the Services (collectively, the "Deliverables") shall be owned exclusively by Customer. Fulcrum agrees and will cause its Fulcrum personnel to agree, that with respect to any Deliverables that may qualify as "work made for hire" as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a "work made for hire" for Customer. To the extent that any of the Deliverables do not constitute a "work made for hire," Fulcrum hereby irrevocably assigns and shall cause its personnel to irrevocably assign to Customer all Intellectual Property Rights worldwide in the Deliverables. The Fulcrum shall cause its personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Fulcrum personnel may now or hereafter have in any jurisdiction to so-called "moral rights" or rights of droit moral with respect to the Deliverables.

2. All Intellectual Property Rights in all documents, data, know-how, methodologies, software, and other materials provided by or used by Fulcrum in performing the Services and developed or acquired by the Fulcrum prior to or independently of these Terms (collectively, "Pre-Existing Materials") shall be owned exclusively by Fulcrum and its licensors. Fulcrum hereby grants Customer a irrevocable/revocable, perpetual, fully paid-up, royalty-free, non-transferable (except in accordance with 12.5), non-sublicensable, worldwide, non-exclusive license to use, display, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell and otherwise exploit any Pre-Existing Materials to the extent incorporated in or otherwise necessary for the use of the Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Fulcrum.

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E. Confidential Information. 

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1. All non-public, confidential or proprietary information of either party ("Confidential Information"), including, but not limited to, information about such party's business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with these Terms, and whether or not marked, designated, or otherwise identified as "confidential," is confidential, solely for use in performing these Terms and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party's breach of these Terms; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party's disclosure hereunder; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction.

2. The Receiving Party shall be responsible for any breach of this Section caused by any of its employees, contractors, agents, or representatives. On the expiration or termination of these Terms. At any time during or after the term of these Terms, at the Disclosing Party's written request, the Receiving Party shall promptly return, and shall require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each party's obligations under this Section will survive termination or expiration of these Terms for a period of 4 years, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.

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F. Limitation of Liability

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LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (A) ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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G. Miscellaneous.

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1. Independent Contractors. The parties are independent contractors, and nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between them. Neither party shall be authorized to contract for or bind the other party in any manner whatsoever.

2. No Publicity. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms, or otherwise use the other party's trademarks, service marks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the other party. 

3. Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the first page of these Terms (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section. 

4. Entire Agreement; Order of Precedence. These Terms, together with all Schedules and Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to these Terms with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of these Terms and those of any Schedule or Exhibit, then the terms of these Terms shall control unless expressly set forth otherwise in the applicable Schedule or Exhibit.

5. Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under these Terms, including by operation of law, change of control, or merger], without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed]. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. These Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

6. No Third-Party Beneficiaries. These Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms.

7. Amendment and Modification; Waiver. These Terms may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. No failure to exercise any rights, remedy, power or privilege ("Right(s)") arising from these Terms shall operate or be construed as a waiver thereof. No single or partial exercise of any Right hereunder precludes any other or further exercise thereof or the exercise of any other Right.

8. Severability. No invalidity, illegality, or unenforceability of any provision herein in any jurisdiction, shall affect any other term or provision of these Terms or invalidate or render such provision unenforceable in any other jurisdiction. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible.

9. Governing Law: Submission to Jurisdiction. These Terms and all related documents including all exhibits attached hereto, and all matters arising out of or relating to these Terms, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations and Tex. Bus. & Com. Code Ann. § 271.001 et seq.), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas

10. Counterparts. These Terms may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.