Fulcrum Design, LLC  Terms of Service

Fulcrum Design, LLC D.B.A. QueueMobile™, Student Q™ and Court Q™ are Software as Service (SaaS) suites solely owned by Fulcrum Design, LLC, and SaaS provided by Fulcrum Design, LLC ("Fulcrum Design", "we", "our", or "us").

1. Your Relationship With Fulcrum Design

By using any one of these SaaS suites, QueueMobile™, Student Q™ and Court Q™("SaaS"), our mobile, desktop, tablet apps (our "Apps") and all related end clients, widgets, kiosks, applications, data, software, APIs and other services provided by Fulcrum Design (the "Services"), you are agreeing to be bound by the following terms and conditions ("Terms of Service").

These Terms of Service, together with our Privacy Policy and Acceptable Use Policy, and any other terms specifically referred to in any of those documents, constitute a legally binding agreement (the "Agreement") between you and Fulcrum Design in relation to your use of the software as a service, (together, the "SaaS").

2. Accepting the Agreement

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES, AND ALL USERS WHO ACCESS OUR SERVICES THROUGH YOUR ACCOUNT TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY, ITS AFFILIATES, AND USERS ASSOCIATED WITH IT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

If Fulcrum Design makes material changes to the Agreement, we may or may not notify you by email or by posting a notice on our site before the changes are effective. Any new features that augment or enhance the current SaaS, including the release of new tools or resources, shall be subject to the Agreement. Continued use of the SaaS after any such changes shall constitute your consent to such changes.

VIOLATION OF ANY OF THE TERMS BELOW WILL RESULT IN THE TERMINATION OF YOUR ACCOUNT.

1. You may not use the SaaS and may not accept the Agreement if you are not of legal age to form a contract with Fulcrum Design, or you are a person or entity barred from receiving Services under the laws of the United States or other countries including the country in which you or from which you use the Services.

2. You must be a human. Accounts registered by "bots" or other automated methods are not permitted.

3. You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright or trademark laws).

3. Description of the SaaS

The SaaS suites are interactive queue management systems using SMS text messaging and digital display directories. Registered users of the SaaS can enter customer contact into system, to send, receive, text messages as a function of the queuing system.  Contacts ("Content"), which will be stored by Fulcrum Design. Content created or uploaded to Fulcrum Design will be made available on end clients or Services associated with the SaaS. Content available on Fulcrum Design can be shared with other registered users or non-registered users at user (account holder’s) discretion.

4. Payments, Refunds, Upgrading, and Downgrading Terms

1. All premium Services require payment up front, or an electronic payment arrangement, (transfer, valid credit card) at time of registration.

2. Fulcrum Design reserves the right to immediately bill you for agreed upon service plan.

3. Services are billed following any free trial period, including a one time set-up fee, in advance. Subscription licensed services will be billed on an annual or quarterly basis and are non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with a valid or activated account.

4. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.

5. For any upgrade or downgrade changes made to your account, your credit card provided by you will automatically be charged the new rate on your next billing cycle.

6. Downgrading your Service may cause the loss of content, features, or capacity of your Account. Fulcrum Design does not accept any liability for such losses.

5. Cancellation and Termination

1. You are solely responsible for properly canceling your Account. An email to support@fulcrumdesignllc.com, with “Cancel” in subject line or phone request is required to cancel your account. Your account is officially cancelled upon receiving a confirmation number.

2. All of your Content will be immediately deleted from the Service upon cancellation. This information cannot be restored in the future if you choose to register for the Service in the future.

3. If you cancel the Service before the end of your current paid up period, your cancellation will take effect immediately and will not be charged again.

4. Fulcrum Design, in its sole discretion, has the right to suspend or terminate your Account and refuse any and all current or future use of the Service, or any other Fulcrum Design service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Content in your Account. Fulcrum Design reserves the right to refuse service to anyone for any reason at any time.

5. Fulcrum Design shall not be liable to you or to any third party due to your Account being cancelled or terminated, including Accounts terminated by Fulcrum Design due to violation of the Agreement.

6. Modifications to the Service and Prices

1. Fulcrum Design reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.

2. Prices of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 day notice. Such notice may be provided at any time through email.

3. Fulcrum Design shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

7. Intellectual Property and Content Ownership

1. QueueMobile™, Student Q™ and Court Q™ are the intellectual property of Fulcrum Design,llc.

2. Unless you have agreed otherwise in writing with Fulcrum Design, you may not use any of Fulcrum Design's trade names, trademarks, service marks, logos, icons, images, domain names, and other distinctive brand features.

3. The look and feel of the Service and the products that considered within the Fulcrum Design SaaS the intellectual property of Fulcrum Design, Inc. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS, JavaScript, or visual design elements or concepts without express written permission by Fulcrum Design.

4. We claim no copyright or intellectual property rights over the Content uploaded or created by you within the Service.

8. Account Level Security

1. You are responsible for maintaining the security of your account and password. Fulcrum Design cannot and will not be liable for any loss or damage from your failure to comply with security obligation.

2. You agree and understand that you are responsible for maintaining the confidentiality of your Fulcrum Design passwords.

3. You agree that you will be solely responsible to Fulcrum Design for all activities that occur under your account.

4. If you become aware of any unauthorized use of your password or of your account, you agree to notify Fulcrum Design immediately at support@fulcrumdesignllc.com .

9. Privacy Policy and Your Personal Information

Fulcrum Design greatly respects your desire for privacy. Our Privacy Policy is written with your interests in mind. For more information on how we handle and protect your data please read a copy of the policy. By using Fulcrum Design services you are consenting to the terms of our Privacy Policy.

10. Exclusion of Warranties

1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." WITHOUT WARRANTY OF ANY KIND AND FULCRUM DESIGN HEREBY DISCLAIMS ALL WARRANTIES EITHER EXPRESSED OR IMPLIED

2. FULCRUM DESIGN DOESN'T REPRESENT OR WARRANT TO YOU THAT (A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

11. Limitation of Liability

1. FULCRUM DESIGN MAY TERMINATE OR MAKE CHANGES TO ALL OR ANY PORTION OF THE SERVICIES AT ANY TIME AND WITHOUT NOTICE OR LIABILITY.

2. FULCRUM DESIGN SHALL NOT BE LIABLE TO YOU FOR:

A. ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;

B. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;

C. YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;

12. General Conditions

Fulcrum Design continuously makes changes to the SaaS in order to provide the best possible experience for its users. You accept and agree that the form and nature of the Services which Fulcrum Design provides may change without prior notice. Continued use of the SaaS after any such changes shall constitute your consent to such changes.

1. As part of this constant innovation Fulcrum Design may stop providing the Services (or any features within the Services) to you or to users at Fulcrum Design's sole discretion, without prior notice to you. You may stop using the Services at any time.

2. In order to access certain Services or use them on an ongoing basis, you may be required to provide information about yourself (such as mobile number or contact details) as part of the registration process for the Service, or as part of your continued use of the SaaS. You agree that any registration information you give to Fulcrum Design will always be accurate, correct and up to date. Failure to provide the correct information shall result in account deactivation.

3. You accept and agree that for any reason Fulcrum Design may disable your account and prevent you from accessing the SaaS, your account details or any data (i.e., messages, etc.) contained or associated with your account.

4. You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Fulcrum Design, unless you have been specifically allowed to do so in a separate agreement with Fulcrum Design. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of any scripts, web crawlers, spiders, robots, site/search retrieval application) especially for the creation of user accounts.

5. Messaging is not limited for inbound and outbound messages. Message flow, inbound and outbound, are throttled as defined by the package purchased. In addition, message ratio must be no more than three outbound messages to one inbound message. You accept and agree that limits may be set at any time, at Fulcrum Design's discretion. There is an enforced Acceptable Use Policy you must adhere to and accept by agreeing to the Terms of Service. There are rules FCC, MMA, and CTIA policy and laws around text messaging spam that will be strictly enforced.

6. Messages shall be deemed to have been delivered when Fulcrum Design delivers the messages to the immediate destination, including mobile telephone networks, or any other intermediary server/API that is designated as the point of delivery for the message. Fulcrum Design does not guarantee delivery on behalf of mobile carriers.

7. Although Fulcrum Design provides extensive text messaging coverage including all major U.S. mobile carriers, Fulcrum Design makes no guarantees to its network coverage.

8. Your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis.

9. Support for Fulcrum Design services is predominantly only available in English.

10. You agree that you will not engage in any activity that interferes with, disrupts, damages, impairs, or disables the Services (or the servers and networks which are connected to the Services).

11. You understand that Fulcrum Design uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.

12. You agree not to harass or advocate harassment of another person or entity. You agree to never impersonate any person or entity or misrepresent in any way your affiliation with a person or entity. You agree to never send text messages to unknown mobile numbers or to mass text unsolicited persons.

13. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Fulcrum Design customer, employee, or member will result in immediate account termination.

14. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

15. You understand that Fulcrum Design messaging Services act only as a service for users to send text messages to a contact(s) mobile phone and that Fulcrum Design does not itself verify the content of messages sent by users or messages received by users. Fulcrum Design cannot and does not assume responsibility for the accuracy, completeness, safety, reliability, timeliness, innocuousness, legality or applicability of any text message sent to a mobile number or received by any user. Text message at your own risk.

16. Unless you have been specifically permitted to do so in a separate agreement with Fulcrum Design, you agree that you will not modify, adapt, reverse engineer, reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.

17. You expressly understand and agree that Fulcrum Design shall not be liable for any 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 Fulcrum Design has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) 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 service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; (v) or any other matter relating to the service.

18. You agree that you are solely responsible for (and that Fulcrum Design has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Fulcrum Design may suffer) of any such breach. 19. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.

20. The failure of Fulcrum Design to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Agreement constitutes the entire agreement between you and Fulcrum Design and governs your use of the Service, superseding any prior agreements between you and Fulcrum Design (including, but not limited to, any prior versions of the Terms of Service, Privacy Policy, or Acceptable Use Policy ). You agree that these Terms of Service and Your use of the Service are governed under Connecticut law.

21. Your relationship with Fulcrum Design under the Terms, shall be governed by the laws of the State of Connecticut. You and Fulcrum Design agree to submit to the exclusive jurisdiction of the courts located within the county of Hartford, Connecticut to resolve any legal matter arising from the Terms. You agree that Fulcrum Design shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

13. Indemnification

1.. Fulcrum Design shall indemnify and hold harmless Client from and against any and all claims and suits, (including reasonable attorney’s fees and costs) brought against Client alleging that a Service infringes or misappropriates any intellectual property rights in a country in which such Service is provided by the Fulcrum to Client.

2. You shall defend Fulcrum Design against any claim, demand, suit or proceedings made or brought on against Fulcrum Design by a third partying alleging that Your Content or Your use of the Service in violation of this Agreement, infringes or violates applicable law, and shall indemnify Fulcrum Design of any damages finally awarded against and for the reasonable attorney's fees incurred by, Fulcrum Design in connection with any such claim, demand, suit or proceeding; provided, that Fulcrum Design (a) promptly gives You written notice of the claim, demand, suit or proceeding; (b) gives You sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that You may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases Fulcrum Design of all liability); and (c) provide to You all reasonable assistance, at Your expense.

14. Questions

Questions about the Agreement should be sent to support@fulcrumdesignllc.com.

 


































Fulcrum Design Acceptable Use Policy

This document is an extension of Fulcrum Design's Terms of Service and is a part of Fulcrum Design's overall Agreement.

Fulcrum Design provides queue management services using digital display directories and SMS text messaging service for clients to extend text messaging beyond the mobile phone. Users of any Fulcrum Design suite of Software as a Service can send texts from the cloud application via our Web, Desktop, and Tablet apps. Advanced users can use the Fulcrum Design API with their Fulcrum Design Account. With great power comes great responsibility. By signing up for Fulcrum Design you agree to adhere to Fulcrum Design's Terms of Service and Acceptable Use Policy.

 

Spam

Using any one of Fulcrum Design SaaS for spam will result in your account being deactivated immediately. We take spam and unsolicited messaging very seriously. Text messaging (SMS and MMS) is a regulated medium. There are a number of governing bodies that help to protect the consumer from spam. Fulcrum Design builds safeguards into our Service to protect consumers. As a User of the SaaS You are also responsible for respecting the governing laws. As a user of Fulcrum Design, You are agreeing to be a good citizen of the SaaS.

Best Practices

Below are a number of groups, agencies, and nonprofit organizations that help to protect consumers from spam. They also provide general guidelines for using text messaging for anything beyond just a conversation between friends.

 

Application to peer Messaging guidelines and best practices that resonate between all of them.

  1. Content must be age appropriate for all audiences.
  2. Customers should opt-in to receive messages from you.
  3. Customers should be able to opt-out of your service or promotional material. That is until the user opts back into the service.
  4. On the initial message to the customer, it is best to provide information on how they can opt out of the service.

 

In an effort to protect all users, Fulcrum Design looks for keywords that denote a user's intention to opt-out of receiving text messages. Those keywords include, but are not limited to: L to leave line, C to cancel appointment, stopall, block, end, unsubscribe, and quit. Understand that if a message is received from the customer by Fulcrum Design and their response contains one of these values, you will not see the customer's response. The customer will receive an informational text message from Fulcrum Design, letting them know that your number has been blocked from texting. It will also give them away to undo their action if it was unintentional.

Mobile Advertising Association, MMA

The MMA is focused on the rules and guidelines specific to advertising and marketing over text messages. So if you are a planning a promotional or advertising campaign and leveraging Fulcrum Design to pull it off, we suggest that you adhere to the guidelines outlined by the MMA.

Here are a few files most relevant to protecting consumers:

1. http://www.mmaglobal.com/files/mobileadvertising.pdf

2. http://www.mmaglobal.com/bestpractices.pdf

3. http://www.mmaglobal.com/uploads/Consumer-Best-Practices.pdf

 

Cellular Telecommunications Industry Association, CTIA

CTIA is a group of U.S. wireless operators and 3rd party service providers that power the text messaging infrastructure. This group also concerns itself with policies to protect the text messaging medium. Text messaging is a medium that spans a large number of service providers. CTIA has worked with the industry leaders to come up with a set of guidelines that help to protect message recipients and text messaging as a communication medium.

Here are a few links with the most relevant information:

1. http://www.ctia.org/business_resources/wic/index.cfm/AID/12056

2. http://files.ctia.org/pdf/SMS_Interoperability_Guidelines_V3-2-AsAdopted.pdf

 

Common Short Code Administration, CSCA

The CSCA is an organization that helps businesses fulfill their texting needs and with the help of CTIA has come up a rule set that addresses concerns of programs texting wireless customers. Similar to CTIA, the CSCA expands the best practices of the industry and helps to apply it to text messages generated programmatically rather than peer-to-peer, like when a mobile phone user texts another mobile phone user.

Here is a link to the CSCA's best practices:

1. http://www.usshortcodes.com/csc_best_practices.html F ederal Communications Commission, FCC

Federal Regulations include FCC Requirements

Text messages sent to consumers, especially those programmatically sent; have to adhere to guidelines established in the Telephone Consumer Protection Act and the Controlling the Assault of Non-Solicited Pornography and Marketing Act.

Below are some links to an overview of the laws and then the specific laws themselves

1. http://www.fcc.gov/guides/spam-unwanted-text-messages-and-email

2. http://transition.fcc.gov/cgb/policy/TCPA-Rules.pdf

3.http://www.gpo.gov/fdsys/pkg/USCODE-2011-title15/html/USCODE-2011-title15-chap103.htm

 

Volume of Messages

As a user of Fulcrum Design you can easily reach a large quantity of customers very quickly. Similar to the spam policies in place, Fulcrum Design will throttle message volume on accounts deemed to be sending spam messages.

 

Questions or Support

We understand that there are quite a few rules to read and absorb. If you have any questions, please feel free to reach out to us at support@fulcrumdesignllc.com

 

 

August 2019