IBCC Service Agreement

FCP Insight Business Control Center

SERVICE AGREEMENT

 

This Service Agreement (the “Agreement”) is entered into between FCP Insight, Inc., a Washington corporation with offices located at 19023 36th Ave. W., Ste. E, Lynnwood, WA 98036 (“FCP Insight”) and you (“Customer”) as of the date the Customer manifests its agreement to these terms and conditions by clicking “I Agree” on the website where this Agreement appears.

1. Service.
   • Service. The Service is the FCP Insight Business Control Center, an online platform for project estimating, project management, creating and tracking service requests, contact management/CRM, timecard entries, document repository and related activities, as further described in this Agreement.  FCP Insight shall use commercially reasonable efforts during the Term to provide to Customer and its Authorized Users the Service described in this Agreement and the invoice from FCP Insight (“Invoice”) in accordance with the specifications set forth in this Agreement (“Specifications”), including to host, manage, operate and maintain the Service for remote electronic access and use by Customer and its Authorized Users in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for: (a) Scheduled Downtime as defined in Section 4; (b) Service downtime or degradation due to a Force Majeure Event; (c) any other circumstances beyond FCP Insight’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Service, or use of the Service other than in compliance with the express terms of this Agreement and the Specifications; and (d) any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Service as permitted by this Agreement.  The parties do not have an agreement for FCP Insight to provide any particular Service until this Agreement has been executed and FCP Insight has sent an Invoice to Customer confirming the details of the Service that FCP Insight will provide to Customer.  FCP Insight reserves the right in its sole discretion to change the Service at any time in a manner that it deems necessary or useful without notice to Customer.  FCP Insight may engage third parties to perform actions supporting the Service (“Subcontractor”). FCP Insight may suspend Customer access to the Service or FCP Insight Materials, without liability, if required by law or FCP Insight believes, in its sole discretion Customer or any Authorized User has failed to comply with any term of this Agreement or that it is otherwise appropriate or necessary.  This Section does not limit any of FCP Insight’s other rights or remedies under this Agreement.  FCP Insight’s obligations to Customer are subject to Customer’s compliance with this Agreement.  This Agreement applies to the Service described above and not FCP Insight’s website generally, which is instead governed by the Terms of Use and Privacy Policy hosted on the website.
   • Service and System Control. FCP Insight has and will retain sole control over the Service and FCP Insight Materials, including the: (i) FCP Insight Systems; (ii) location(s) where any of the Service is performed; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Service and Service maintenance, upgrades, corrections and repairs.  Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Service and FCP Insight Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User.
2. Authorization and Customer Restrictions.
   • Authorization. FCP Insight authorizes Customer to access and use, solely in the Territory and during the Term, the Service and such FCP Insight Materials as FCP Insight may supply or make available to Customer solely for the Permitted Use by Authorized Users in accordance with this Agreement.  This authorization is non-exclusive and non-transferable by Customer except as provided in Section 14.3.  This Agreement does not grant any right, title, license or interest in or to any Intellectual Property Rights in or relating to, the Service, FCP Insight Materials or Third Party Materials. All right, title and interest in and to the Service, the FCP Insight Materials and the Third Party Materials are and will remain with FCP Insight and the respective rights holders in the Third Party Materials.
   • Authorization Limitations and Restrictions. Customer shall not access or use the Service or FCP Insight Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Customer shall not: (a) copy, modify or create derivative works or improvements of the Service or FCP Insight Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Service or FCP Insight Materials to any Person; (c) attempt to access to the source code of the Service or FCP Insight Materials; (d) bypass any security used by the Service or FCP Insight Materials or access or use the Service or FCP Insight Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) upload or transmit any information or materials that are unlawful or injurious; (f) damage, interfere with or otherwise harm the Service, FCP Insight Systems or FCP Insight’s provision of services to any third party; (g) remove, delete, alter or obscure any trademarks, Specifications, Documentation,  warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Service or FCP Insight Materials; (h) use the Service or FCP Insight Materials in any manner that violates any Intellectual Property Right, a right of any third party, or that violates any applicable Law; (i) use the Service or FCP Insight Materials for purposes of competitive analysis of the Service or FCP Insight Materials, the development of a competing software service or product or any other purpose that is to the FCP Insight’s detriment or commercial disadvantage; (j) use the Service in a manner that could lead to personal injury or physical or property damage; or (k) otherwise access or use the Service or FCP Insight Materials beyond the scope of the authorization granted under this Agreement.
3. Customer Obligations.
   • Customer Systems and Cooperation. Customer shall: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Service are accessed or used; (b) provide FCP Insight Personnel with such access to Customer’s premises and Customer Systems as is necessary for FCP Insight to perform the Service in accordance with the Specifications; and (c) provide all cooperation and assistance as FCP Insight may reasonably request to enable FCP Insight to exercise its rights and perform its obligations under and in connection with this Agreement.  FCP Insight is not liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).  If Customer becomes aware of any actual or threatened activity prohibited by Section 2, Customer shall stop the activity and notify FCP Insight.
4. Downtime. FCP Insight will use commercially reasonable efforts to give Customer at least twenty four (24) hours prior notice of all scheduled outages of the Service (“Scheduled Downtime”).
5. Security.
   • Customer acknowledges that the Service are not designed with security and access management for processing sensitive Personal Information. The only information that Customer may input into the Service is names, email addresses and non-personally identifying information about projects.  Customer is prohibited from uploading any other information, including but not limited to social security numbers or financial ACCOUNT information, (“Prohibited Data”). CUSTOMER WILL NOT UPLOAD ANY DOCUMENTS WITH PROHIBITED DATA.  Customer shall not provide any Prohibited Data to, or Process any Prohibited Data through, the Service, the FCP Insight Systems or any FCP Insight Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.  Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Service; (c) Customer Systems, (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Service and FCP Insight Materials.  Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Service; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Service.
6. Fees; Payment Terms.
   • Customer shall pay FCP Insight the fees set forth on the Invoice (“Fees”) in accordance with this Section. Customer is responsible for all taxes, duties and charges related to this Agreement, other than any taxes imposed on FCP Insight’s income. Customer shall pay all Fees on or prior to the due date set forth on the Invoice in US dollars, to the address designated by FCP Insight or by wire as directed by FCP Insight.  If Customer fails to make any payment when due then, in addition to all other remedies that may be available: (a) FCP Insight may charge interest on the past due amount at the rate of 1.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Customer shall reimburse FCP Insight for all reasonable costs incurred by FCP Insight in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and (c) if such failure continues for thirty (30) days following written notice thereof, FCP Insight may suspend performance of the Service until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
7. Intellectual Property Rights.
   • Service and FCP Insight Materials. All right, title and interest in and to the Service and FCP Insight Materials, including all Intellectual Property Rights therein, are and will remain with FCP Insight and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Service or FCP Insight Materials (including Third-Party Materials) except as expressly set forth in this Agreement or the applicable third-party license.  All other rights in and to the Service and FCP Insight Materials (including Third-Party Materials) are expressly reserved by FCP Insight and the respective third-party licensors. Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in this Agreement. Customer hereby unconditionally and irrevocably grants to FCP Insight an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.  Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to FCP Insight, its Subcontractors and the FCP Insight Personnel as are necessary or useful to perform the Service; and (b) to FCP Insight as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
8. Confidentiality.
   • Confidential Information. In connection with this Agreement each party (“Disclosing Party”) may disclose or make available Confidential Information to the other party (“Receiving Party”). “Confidential Information” means any non-public information in any form or medium, including all information that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, in each case whether or not marked, designated or otherwise identified as “confidential”.  All FCP Insight Materials are the Confidential Information of FCP Insight, and the financial terms and existence of this Agreement are the Confidential Information of each of the parties.  Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party; (b) becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) is received by the Receiving Party on a non-confidential basis from a third party that has no obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.  Receiving Party will not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement and will not disclose Confidential Information to third parties (subject to the disclaimers in Section 5.1).  If the Receiving Party must by Law disclose any Confidential Information then to the extent permitted the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure.
9. Term and Termination.
   • Initial Term. This Agreement will remain in effect for the Initial Term and as extended by any Renewal Term(s), as provided in the Invoice, unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Initial Term or Renewal Terms.
   • Termination. FCP Insight may terminate this Agreement on written notice to Customer, if after notice from FCP Insight Customer: (i) fails to pay any amount when due, and such failure continues more than three (3) days, or (ii) breaches any of its obligations under this Agreement and fails to cure the breach within ten (10) days. FCP Insight may terminate the Agreement immediately if the breach is incapable of cure.  Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due.  Upon termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all rights granted by either party to the other will immediately terminate; (b) FCP Insight shall immediately cease all use of any Customer Data or Customer’s Confidential Information, except that FCP Insight can continue to use Customer Data in aggregate, nonidentifying form in perpetuity.  FCP Insight will return or destroy Customer Data and Customer’s Confidential Information within a reasonable amount of time after request from Customer, at Customer’s expense which will be billed and paid in advance.  FCP Insight will return this information in a format that is most convenient to FCP Insight, which may not be in the same format that it was submitted by Customer, (c) Customer shall immediately cease all use of any Service or FCP Insight Materials and (i) promptly return to FCP Insight, or at FCP Insight’s request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any FCP Insight Materials or FCP Insight’s Confidential Information and (ii) permanently erase all FCP Insight Materials and FCP Insight’s Confidential Information from all systems Customer directly or indirectly controls. Customer may continue to use estimates and reports created before the date this Agreement is terminated.   FCP Insight may retain Customer Data for so long as required by applicable Law.  FCP Insight may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course. If FCP Insight terminates this Agreement as provided above, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of FCP Insight’s invoice.  This does not limit FCP Insight’s remedies under this Agreement or applicable Law.
10. Representations and Warranties.
    • Representations and Warranties. Each party represents and warrants to the other party that it has the authority to enter into and perform this Agreement.  The individual indicating assent to this Agreement on behalf of Customer represents and warrants that they are authorized to accept the terms and conditions hereof on behalf of the Company, and that this Agreement shall be a binding obligation of the Company.  Customer warrants that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that performance of this Agreement will not violate any other rights of any third party or violate any applicable Law.
    • DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ALL SERVICE AND FCP INSIGHT MATERIALS ARE PROVIDED “AS IS” AND FCP INSIGHT DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, FCP INSIGHT MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE OR FCP INSIGHT MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICE EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF MALICIOUS  CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
11. Indemnification.
    • FCP Insight Indemnification. FCP Insight shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, successors and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate of Customer Indemnitee) to the extent that such Losses arise from any allegation that Customer’s use of the Service (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. This obligation does not apply to any Action or Losses arising out of or relating to any: (a) access to or use of the Service or FCP Insight Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by FCP Insight; (b) modification of the Service or FCP Insight Materials other than: (i) by or on behalf of FCP Insight; or (ii) with FCP Insight’s written approval in accordance with FCP Insight’s written specification; (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of FCP Insight; or (d) act or omission by Customer.
    • Customer Indemnification. Customer shall indemnify, defend and hold harmless FCP Insight and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “FCP Insight Indemnitee”) from and against any and all Losses incurred by such FCP Insight Indemnitee in connection with (i) any damages caused by Customer in connection with the performance of this Agreement, and (ii) any Action by a third party (other than an Affiliate of a FCP Insight Indemnitee) that arises out of or relates to any: (a) Customer Data; (b) anything provided by or on behalf of Customer; (c) Customer’s breach of this Agreement, or (c) negligence or omission by Customer.
    • Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
    • Mitigation. If any of the Service or FCP Insight Materials are, or in FCP Insight’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Service or FCP Insight Materials is enjoined or threatened to be enjoined, FCP Insight may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Service and FCP Insight Materials; (b) modify or replace the Service and FCP Insight Materials make the Service and FCP Insight Materials non-infringing, while providing substantially equivalent features and functionality; or  (c) by written notice to Customer, terminate this Agreement with respect to all or part of the Service and FCP Insight Materials, and require Customer to immediately cease any use of the Service and FCP Insight Materials.
    • Sole Remedies. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND FCP INSIGHT’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICE AND FCP INSIGHT MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
12. Limitations of Liability.
    • FCP INSIGHT IS NOT LIABLE IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICE, (c) LOSS, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES. THE AGGREGATE LIABILITY OF FCP INSIGHT  IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION (INCLUDING UNDER SECTION 11),  AND OTHERWISE, WILL NOT EXCEED THE TOTAL MONTHLY RECURRING CHARGES ACTUALLY PAID BY CUSTOMER OVER THE PREVIOUS TWELVE (12) MONTHS.
13. Force Majeure.
    • No Breach or Default. Neither party is liable to the other for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”).   Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.  If a Force Majeure Event occurs, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
14. Miscellaneous.
    • Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks without the prior written consent of the other party.
    • Notices. All notices under this Agreement must be sent in writing to the following addresses.  If to FCP Insight: FCP Insight, Inc., attn.: Legal Department, 19023 36th Ave. W., Ste. E, Lynnwood, WA 98036.  If to Customer, to the address in the Invoice, and if there is no address in the Invoice, to any address provided to FCP Insight by Customer.  Notices will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt or (b) when received, if sent by a nationally recognized overnight courier, signature required.
    • Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or duties under it to a third party without FCP Insight’s prior written consent.   Any purported assignment or transfer in violation of this Section is void.  FCP Insight may assign this Agreement and all its associated rights and obligations to a third party at any time without prior notice.
    • Governing Law and Venue. This Agreement is governed by Washington state law.  Venue for any dispute will be in the federal or state courts in city of Seattle and King County.
    • General. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.  The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.  The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.  This Agreement is the sole agreement of the parties with respect to its subject matter and it supersedes all prior and contemporaneous understandings and agreement regarding that matter.  No amendment to, modification of or waiver of part or all of this Agreement is effective unless it is in writing and signed by each party.  The following sections will survive termination of this Agreement: 8, 9.2, 10, 11, 12 and 14.
    • Selected Definitions. Any capitalized term used in this Agreement but not otherwise defined in this Agreement shall have the following meaning:

“Access Credentials” means any user name, identification number, password, license, company name, 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 Service.

 

“Affiliate” means a party and any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that party.

“Authorized User” means each of the individuals authorized to use the Service pursuant to this Agreement as identified in the Invoice.

“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Service.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.

“Documentation” means any manuals, instructions or other documents or materials that FCP Insight provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Service or FCP Insight Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, if any.

“FCP Insight Materials” means the Service Software, Specifications, Documentation and FCP Insight Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by FCP Insight or any Subcontractor in connection with the Service or otherwise comprise or relate to the Service or FCP Insight Systems. For the avoidance of doubt, FCP Insight Materials include Resultant Data and any information, data or other content derived from FCP Insight’s monitoring of Customer’s access to or use of the Service, but do not include Customer Data.

“FCP Insight Personnel” means all individuals involved in the provision of the Service as employees, agents or independent contractors of FCP Insight or any Subcontractor.

“FCP Insight Systems” means the information technology infrastructure used by or on behalf of FCP Insight in performing the Service, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by FCP Insight or through the use of third-party services.

“Malicious Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Service or FCP Insight Systems as intended by this Agreement.

“Intellectual Property Rights” means any unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

“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.

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Permitted Use” means any use of the Service by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations for project estimating, project management, creating and tracking service requests, contact management/CRM, timecard entries, document repository and related activities, subject to the requirements of this Agreement.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

“Personal Information” means name, address, date of birth, and any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located.

“Process” means to take any action or perform any operation or set of operations that the Services is capable of taking or performing on any data, information or other content. “Processing” and “Processed” have correlative meanings.

“Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.

“Resultant Data” means information, data and other content that is derived by or through the Service from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.

“Service Software” means the FCP Insight software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that FCP Insight provides remote access to and use of as part of the Service.

“Term” means the term of this Agreement and includes the Initial Term and any Renewal Terms.

“Territory” means the United States.

“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Service that is not proprietary to FCP Insight.