Frakture Terms of Service & Agreement
Why is this important? The Frakture Terms of Service governs your organization’s use of Frakture. It is designed to protect both you as a client and Frakture as your service provider. This legal agreement outlines the rights and responsibilities of your organization and Frakture. By accepting our Terms of Service, you agree to use Frakture in a manner that serves to protect both your organization and Frakture.
1. The Basics.
1.1. Who We Are. We are Frakture, Inc. (“Frakture”, “us”, or “we”), a DC corporation headquartered at 713 7th Street NW, 3rd Floor, Washington, DC 20001.
1.2. What We Do. We developed and provide a service called “Frakture,” which is delivered as hosted software-as-a-service platform we refer to as the “Frakture” or simply as “Frakture.”
1.3. Who You Are. You are an individual or organization/company that is creating an account with us to access or use Frakture (“Frakture account”).
2. Acceptance of the Terms of Service is Required.
2.1. This Agreement. Frakture Terms of Service (“this Agreement”) is a non-negotiable legal agreement between you and Frakture that governs your use of Frakture and imposes legal rights and responsibilities.
2.2. How You Can Accept this Agreement. You accept this Agreement by clicking to accept these terms or by continuing to use Frakture after receiving notice of this Agreement, including by, but not limited to, using Frakture through your username and password or by interacting with Frakture using an API key.
2.3. What It Means When You Accept. By accepting this Agreement, you are agreeing that the services you have ordered from Frakture or otherwise use through Frakture or a Frakture reseller are subject to this Agreement. Your acceptance also creates a contractual relationship between you and Frakture that makes the terms of this Agreement binding on you and makes you legally responsible for all use associated with your Frakture account.
2.4. How You Can Reject this Agreement. You reject this Agreement by clicking to reject these terms or otherwise not clicking to accept these terms when prompted. By rejecting this Agreement, you are agreeing to stop accessing, interfacing with, or otherwise using Frakture, including by way of email, web browser, or API, and to stop receiving services that you may have received prior to rejecting this Agreement.
3. The Applicable Terms.
3.2. Agreement Changes. Frakture reserves the right to make changes to the terms of this Agreement as needed. If we do make a change, you will be prompted to accept or reject the revised agreement in order to continue your use of Frakture.
4. When This Agreement Begins and How Long It Lasts.
4.1. Effective Date. This Agreement becomes effective as soon as you accept this Agreement or continue to access, interact with, or otherwise use Frakture after receiving notice of this Agreement. In all cases, your continued use is subject to this Agreement’s terms.
4.2. Term. This Agreement shall continue for the period specified on your Order Form until cancelled, terminated, or otherwise ended pursuant to this Agreement (“Initial Term”), and if no period was specified in your Order Form, this Agreement shall continue on a month-to-month basis until cancelled, termination, or otherwise ended pursuant to this Agreement.
4.2.1.Continuing Past Initial Term. Upon the expiration of the Initial Term, this Agreement shall continue on a month-to-month basis until cancelled, terminated, or otherwise ended pursuant to this Agreement.
4.3. Cancellation. You may cancel your Frakture account at any time, but you must provide us sixty (60) days written notice (“Notice of Cancellation” for the notice and “Cancellation Period” for the sixty-day period) unless another period is specified in your Order Form or otherwise provided for in this Agreement. The Notice of Cancellation is required even if this Agreement is continuing on a month-to-month basis.
4.3.1. Bases for Cancellation. You may cancel your Frakture account with or without cause, but if you cancel during a Notice of Service Change Period or a Notice of Fee Change Period, Sections 5.2 and 7 shall govern your cancellation as appropriate.
4.3.2. Effective Date of Cancellation. The effective date of cancellation shall be the first day of the first Billing Period following the Cancellation Period (“Cancellation Date”).
4.3.3. Fees Upon Cancellation. In the event that you cancel this Agreement for any reason, you will remain liable for all Startup Fees, Monthly Service Fees, Additional Service Fee, Late Fees, and all other fees and costs that accrued during the Cancellation Period on a pro-rated basis as appropriate up to the Cancellation Date, as well as all other outstanding fees and costs owed to Frakture that may have accrued in prior Billing Periods.
4.3.4. Cancellation by Frakture. Frakture may use the procedures described in this subsection 4.3 to cancel your Frakture account without cause.
5. What We Will Do. We will provide the Bots & Services that you have selected on the Order Form (“Frakture Configuration”). Your Frakture Configuration includes the Bots that you have selected and any “Additional Services” that you have selected. Each of the services that we provide to you pursuant to your Frakture Configuration is subject to the terms as provided in this Agreement.
5.1. Services Offered. The list and descriptions for all Bots and Services offered is posted on Frakture’ website (http://www.Frakture.com/product).
5.2. Modification of Services. Frakture reserves the right to modify its services from time to time upon thirty (30) calendar days’ notice to you (“Notice of Service Change Period”). Your continued use of Frakture after the Notice of Service Change Period constitutes your acceptance of the modification. If you cancel your Frakture account and stop accessing, interacting with, and otherwise using Frakture within the Notice of Service Change Period, this Agreement will terminate and you will not be considered in violation of this Agreement; you will, however, remain liable for accrued fees as provided in Section 4.
5.3. Branding. Frakture has the right to insert a brand at the bottom of each report or other communication or medium stored, generated, or transmitted by or through Frakture.
5.4. Customer Service. Frakture’s humans are available Monday through Friday from 9 to 5 pm. When you contact us, we will respond within 36 hours.
6. What You Can’t Do. The use of Frakture is subject to the terms of this Agreement, including the terms of this Section 7 (hereinafter “the Acceptable Use Policy”). It is important that you understand what you can and cannot do while using Frakture because there are potential penalties for violating the Acceptable Use Policy up to and including the termination of your Frakture account. Each term of the Acceptable Use Policy expressly also applies to the use of Frakture by your Users (as that term is later defined).
6.1. Illegal or Tortious Conduct or Content. Frakture may only be used for lawful purposes. You therefore cannot post, transmit, promote, distribute, store, or otherwise use Frakture or content on or through Frakture that could subject you or Frakture to any liability, including civil, administrative, or criminal liability. Likewise, you may not use Frakture in any way that would violate any applicable law or regulation, including laws that govern the distribution of e-mail.
6.1.1. Examples. Examples of conduct or content that violate this provision include, but are not limited to, planning, advertising, or promoting any illegal activity; using false statements to obtain, or attempt to obtain, account information or other private information from other persons, including other Frakture users; and posting content that defames, abuses, or threatens harm to another person.
6.2. Objectionable Conduct or Content. You cannot transmit, store, or facilitate the distribution of content using Frakture that is objectionable to a reasonable person or would otherwise be contrary to commonly accepted community standards. The determination of whether your conduct or content is objectionable or otherwise contrary to commonly accepted community standards shall be made by Frakture, in its sole and absolute discretion, or by any appropriate court or administrative agency with the authority to make such determinations.
6.2.1. Examples. Examples of conduct or content that violate this provision include, but are not limited to, posting content that is pornographic, lewd, vulgar, or otherwise obscene; posting content that is racially or ethnically offensive; and harassing, abusing, threatening, or stalking any other person, whether or not such conduct constitutes a crime or is subject to civil liability.
6.3. Violation of System or Network Integrity. You cannot use Frakture or any other service, software, or hardware in a way that compromises the security of Frakture or unreasonably disrupts the normal use or operation of Frakture.
6.3.1. Protection of Access to Frakture. You must protect all usernames, passwords, and all other login or access information usable to access any part of Frakture (“Access Credentials”) using at least the degree of diligence and care that a reasonably prudent business would use to protect access to its own confidential information or mission-critical resources.
6.3.2. Non-disclosure of Access Credentials. You may not disclose Access Credentials to any third-party without Frakture’ express written consent and you cannot allow any person other than your employees or other authorized agents to view or access areas of Frakture protected by any Access Credentials. You must immediately notify Frakture if you believe that any of your Access Credentials may have been compromised or that Frakture has become otherwise available to unauthorized third parties.
6.3.3. Access Limited to You and Your Organization. You are not permitted to allow access to Frakture to any individual or entity outside of the organization associated with your Frakture account or related organizations managed through any 3rd parties established under your Frakture account unless Frakture first agrees in writing to the specific access.
6.3.4. Examples. Examples of conduct or content that violate this provision include, but are not limited to substantially interfering with the operation of Frakture through the improper use of network or database access, commands, or queries; substantially interfering with the service of any Internet user, Frakture user, host, or network by intentionally, recklessly, or negligently overloading a system or network through a technique such as mailbombing, flooding, or any broadcast or “denial of service” attack; uploading or transmitting viruses, malware, or other harmful software using Frakture; accessing or using data, systems, or networks, including attempts to probe, scan, or test the vulnerability of a system or network, without the express authorization of the owner of that data, system, or network; breaching the security or authentication measures of any system or network without the express authorization of the owner of that system or network; monitoring data or traffic on any system or network without the express authorization of the owner of that system or network; providing false information to Frakture or other Frakture users in connection with your use of Frakture; and using software that allows you to remain logged in to Frakture even while you are not actively using Frakture.
7. Who May Use Your Account. Anyone with access to your Access Credentials will be considered authorized to use your Frakture account and the services available under your Support Level (“Users”). We are not required to verify any User’s authorization beyond authenticating their Access Credentials.
7.1. Access Must Comply With This Agreement. You may only give or otherwise facilitate access to Frakture as provided in this Agreement, including as provided in the Acceptable Use Policy described in Section 6 above.
7.2. Terms Apply to All Users. The terms of this Agreement apply to you and each of your Users, except that the Payment Terms described in Section 8 do not apply to Users unless otherwise provided in this Agreement or an applicable Order Form. In all cases, you are responsible for the use of Frakture by your Users.
7.4. Use Indicates Authorization. Frakture will consider anyone using your Frakture account, using the services provided to you through Frakture, or otherwise interfacing with Frakture through or on behalf of your Frakture account to be your authorized Users.
8. How Much Everything Costs. You must pay Frakture the following fees and costs unless one or more party is specified in the Order Form to provide payment of a given fee, in which case that party will pay the fees as provided in the Order Form (“Payment Terms”). The schedule of fees and costs summarized below. Frakture reserves the right to modify these charges from time to time upon thirty (30) calendar days’ notice to you (“Notice of Fee Change Period”). Your continued use of Frakture after the Notice of Fee Change Period constitutes your acceptance of the new fee and cost schedule. If you cancel your Frakture account and stop accessing or otherwise using Frakture within the Notice of Fee Change Period, this Agreement will terminate and you will not be considered in violation of this Agreement; you will, however, remain liable for accrued fees as provided in Section 4.
8.1. Configuration Fee. The Configuration fee is based on your selected Services and Bots and is due on the Effective Date. We are not obligated to perform under this Agreement unless and until that fee is paid in full. The execution of new or revised Order Forms may provide additional Configuration Fees, each payable before Frakture will perform the corresponding new or revised service.
8.2. Monthly Fee. The Monthly Fee is calculated based on your Frakture Configuration (Bots and Services selected) and is due on the first day of the Billing Period.
8.3. Additional Service Fee. You must pay all fees and costs associated with any Additional Services, costs incurred by us on your behalf or on account of your or your Users use of Frakture, or other charges to you that accrue within a given Billing Period but are not covered by the Monthly Service Fee (“Additional Service Fee”). Additional Service Fees are due on the first day of the Billing Period immediately following the Billing Period in which the given Additional Service Fee accrues.
8.4. Late Fees. If you fail to pay your Configuration Fee, Monthly Fee, or Additional Service Fee within ten (10) calendar days of the date provided in or through Agreement, Frakture may impose a late fee in the amount of five percent (5%) of the given fee that is late per month or partial month that the given fee remains unpaid past its original applicable due date, beginning on the tenth calendar day following the original applicable due date.
9.1. Confidentiality. You warrant that you will use at least the degree of diligence and care to protect Frakture’s Confidential Information obtained pursuant to or as a result of this Agreement that a reasonably prudent business would use to protect its own Confidential Information of the same type. Frakture warrants that it will use at least the degree of diligence and care to protect your Confidential Information obtained pursuant to or as a result of this Agreement that a reasonably prudent business would use to protect its own Confidential Information of the same type. Frakture will not use Confidential Information for any purpose other than the work contracted for by the client and Frakture.
9.1.1. No Unauthorized Use or Disclosure. You may not use, disseminate, or disclose Frakture’s Confidential Information to any third-party, for any purpose other than performing the obligations or receiving the benefits as provided by this Agreement unless required by law, permitted by this Agreement, or permitted by Frakture’s express written consent. Likewise, Frakture may not use, disseminate, or disclose your Confidential Information to any third-party, for any purpose other than performing the obligations or receiving the benefits as provided by this Agreement unless required by law, permitted by this Agreement, or permitted by your express written consent.
9.2. Intellectual Property. You warrant that you have and will continue to have sufficient right to (1) use content you upload to or use with Frakture, and (2) grant any rights and/or licenses necessary for your use of Frakture. Your warranty specifically applies to your use of Frakture as well as the use of your Users. Nothing in this agreement transfers your ownership of your intellectual property to Frakture. Nothing in this agreement transfers to you ownership of Frakture’s intellectual property including but not limited to Frakture software code, code objects and interfaces.
9.3 Uptime Warranty. We take pride in our ability to provide continuous service and access to Frakture. We therefore warrant that the services we provide to you under this Agreement will be available for at least 99.9% of each month based on 730 service-hours per month.
9.3.1. Downtime Credit. If you experience an unplanned interruption in service (“Downtime”) of more than 0.73 hours during any given month, Frakture will credit your next Monthly Service Fee by (Downtime hours / 730 hours) * (Monthly Service Fee), up to a maximum Downtime credit in any one month period equal to your regular Monthly Service Fee. This credit is your sole and excusive remedy for Downtime; you may not recover any compensation for Downtime other than through this credit.
9.3.2. Downtime Exclusions. Downtime does not include interruptions in service resulting from circumstances beyond our control, including, but not limited to, Internet or network outages outside of Frakture, failure of your software or hardware, or any other circumstance that would prevent you, your Users, or third parties from accessing Frakture or content stored, used, or transmitted by Frakture that is due to a failure of a service, product or resource not under the control of Frakture. Downtime also does not include suspensions of service and other time related to enforcement actions taken by Frakture pursuant to Section 10.
9.3.3. Credit Procedure. To receive a credit for Downtime, you must (1) document the Downtime in writing, including the approximate date, time, and extent of the Downtime; and (2) receive verification from Frakture that the Downtime occurred and the extent to which it occurred.
9.4. Data Backup. Frakture does not store any personally identifiable data. Frakture will backup any analytics data you have stored on Frakture on a regular basis. Although we make every effort to ensure your data is backed up and available for restoration, we do not guarantee that your data will be backed up or recoverable. It is your responsibility to back up your data in the systems where it resides to ensure recoverability.
9.5. Authorized Agent. If you accept this Agreement on behalf of someone else or an organization, you warrant that you are authorized to bind that person or organization to this Agreement.
10. Enforcement of this Agreement.
10.1. Enforcement by Frakture. We may enforce the terms of this Agreement at our sole, reasonable, and good faith discretion and reserve the right to make the determination with that discretion as to whether your conduct or content violates this Agreement, including whether your conduct or content violates the Acceptable Use Policy.
10.2. Enforcement Actions. We may immediately take any or all of the following actions if we reasonably believe you or your Users have violated or are violating any part of this Agreement, including the Payment Terms or the Acceptable Use Policy:
10.2.1. Suspend Access. Frakture may suspend your access to and operation of Frakture, except that in the case of a failure to comply with the Payment Terms, Frakture has the option to either
10.2.1.1. Impose late fees pursuant the Payment Terms and continue to provide access to Frakture; or
10.2.1.2. Suspend your access to and operation of Frakture, but only if you fail to cure the violation (along with any imposed late fees) within forty-five (45) days from the date the given fee came due.
10.2.2. Terminate Agreement. Frakture may immediately terminate this Agreement for material breach of this Agreement if:
10.2.2.1. You fail to cure your violation within ten (10) calendar days from your receipt of a Notice of Enforcement described below, except that where the only ground for termination is your failure to comply with the Payment Terms, Frakture may only terminate the Agreement if your account with Frakture becomes forty-five (45) days or more overdue; or
10.3. Notice of Enforcement. Frakture will provide you with a notification by email or other writing of all enforcements actions taken pursuant to this section within ten (10) calendar days of the applicable action. Frakture may also notify you of violations of this Agreement, including material breaches of this Agreement.
10.4. Fees Upon Termination. In the event that this Agreement is terminated for any reason, you will remain liable for payments for all Configuration Fees, Monthly Fees, Additional Service Fee, Late Fees, and all other fees and costs that accrued in the Billing Period in which the termination occurred on a pro-rated basis up to the date of termination, as well as all other outstanding fees and costs owed to Frakture that may have accrued in prior Billing Periods.
10.5. Force Majeure. If we fail to perform under this Agreement due to a qualifying condition beyond our control, we will not be in breach contract so long as we took reasonable steps to minimize the non-compliant performance or non-performance and notify you of the condition and our resulting non-compliant performance or non-performance.
10.5.1. Qualifying Condition. Qualifying conditions may include, but are not limited to, acts of God (including fire, flood, earthquake, storm, floods, hurricane, or other natural disaster); war; terrorist activities; governmental restrictions, sanctions, or embargos; strikes, lockouts, or other labor disputes; interruptions in power, Internet, or telephone service; or damage to our facilities, servers, or resources.
10.5.2. No Termination Permitted. Neither you nor Frakture may terminate this Agreement due to the occurrence of one or more of the qualifying conditions described above unless further performance of this Agreement is objectively impossible or commercially impracticable as a result of those conditions. Mere increases (or decreases) in prices or costs, however, are insufficient to warrant termination of this Agreement.
11. Disputes Related to this Agreement.
11.1. Arbitration. All controversies, claims, and disputes arising out of or related to this Agreement or any breach thereof shall be submitted to binding arbitration in the District of Columbia in accordance with the rules of the American Arbitration Association (AAA) and subject to the substantive law of the District of Columbia where AAA rules do not apply (except as to choice-of-law principles).
11.2. Awards. Awards resulting from the arbitration required under this section may be entered as judgments in any court having jurisdiction.
11.3. Costs. The losing party in the arbitration shall bear the costs of the arbitration unless no losing party is designated, in which case you and Frakture shall bear the costs in equal measures. Costs that are divided in equal measure when no losing party is designated shall not include the costs of attorney fees incurred by you or Frakture, which shall be born by the party incurring those fees.
12. Indemnification and Waiver of Damages.
12.1. You Indemnify Us. You will indemnify Frakture and any contractors, agents, employees, officers, directors, shareholders, and affiliates that we may use to provide your Frakture Configuration for any losses, damages, costs, including reasonable attorney fees, resulting from any claim or demand by third parties arising out of or related to any negligent or wrongful act committed by you or on your behalf, including breach of this Agreement and any violation of international laws or regulations related to your use of Frakture.
12.2. We Indemnify You. Frakture will indemnify you for any losses, damages, or costs, including reasonable attorney fees, resulting from any claim or demand by third parties arising out of any negligent or otherwise wrongful performance of this Agreement by us.
12.3. Waiver of Damages. Frakture is not liable to you or any purported third-party beneficiary of this Agreement for any damages, fees, or costs arising out of, or related to, you use or inability to use Frakture, including without limitation, attorneys’ fees, damages from lost profits, procurement of substitute goods, or lost good will, except as expressly provided by this Agreement or as required by law. This waiver of damages applies even if you have advised us of the possibility of such damages.
13. Everything Else.
13.1.1. Confidential Information. Confidential Information includes any information created, developed, produced, or made known to one party (“the Receiving Party”) by the other party or its agents (“the Disclosing Party”), or otherwise through the Receiving Party’s relationship with the Disclosing Party, that (1) the Disclosing Party designates or otherwise identifies as confidential or proprietary as described below, or (2) is automatically deemed confidential or proprietary because the nature of the information is such that the Receiving Party should reasonably understand that the Disclosing Party desires or would desire to protect the information from unrestricted disclosure or use. Confidential Information includes information created, developed, produced, or made known to the Receiving Party prior to or after the execution of this Agreement, but not information created, developed, produced, or made known after the termination or expiration of this Agreement. Notwithstanding this definition, Confidential Information shall not include information that falls within the definition of Non-confidential Information provided below even if the information would otherwise meet the definition of Confidential Information.
220.127.116.11. Designated Confidential or Proprietary Information. Confidential Information includes any information that the Disclosing Party (1) marks proprietary, confidential, or with some other marking of like import; (2) identifies in writing at the time of transmittal to or receipt by either party as being proprietary or confidential; or (3) if orally or visually disclosed, identifies as proprietary or confidential either at the time of disclosure or in writing within thirty (30) days of such disclosure.
18.104.22.168. Confidential or Proprietary Information by Nature. Certain kinds of information are to be automatically considered Confidential Information even if the information is not marked or otherwise designated as confidential or proprietary, and regardless of how the information was transmitted or otherwise disclosed. Such types of Confidential Information include, but are not limited to customer, individual user, member information; customer or potential customer information; financial information; business information, including methods, practices, suppliers, plans, and strategies; legal advice; sales and marketing data or plans; trade secrets, information on proprietary software, firmware, hardware, documentation, scientific information, technical information, and economic information, including, but not limited to, patterns, plans, compilations, program devices, formulae, designs, prototypes, methods, techniques, process, procedures, programs, or codes; notes, test results, development, or any other data, methods, or systems developed by the Receiving Party that pertain to or were based on Confidential Information; and any other information that is not generally known to the public but that is created, developed, produced, or made known to the Receiving Party through its relationship with the Disclosing Party.
13.1.2. Non-confidential Information. Notwithstanding the definition of Confidential Information provided above, information shall not be considered Confidential Information where that information, as formatted, categorized, or organized, was or is (1) in the public domain at the time of disclosure to the Receiving Party or thereafter enters the public domain through no fault of the Receiving Party, its employees, or its authorized agents; (2) rightfully disclosed to the Receiving Party by a third party and not in violation of the proprietary or other rights of any other party; (3) independently developed or owned by the Receiving Party; or (4) software code in either object code or source code form that is or becomes properly licensed to either the Disclosing Party or the Receiving Party pursuant to the GNU General Public License or the GNU Lesser General Public License (LGPL), but only to the extent the given software code is made available under the LGPL and not proprietary, non-licensed, and/or confidential software code that is merely linked to or programmatically inherited using the LGPL-covered software code.
13.1.3. Order Form. The Order Form is a separate document (created in print or via Frakture.com from this Agreement in which you selected your Frakture Configuration (or if you are a User, was otherwise set), first date of service, and Billing Period. Your Frakture Configuration may be supplemented by the execution of additional Order Forms.
13.2. Notices. All notices to you described in this Agreement will be deemed effective when sent to the email address you provided on your Order Form. Any notice to us will be deemed effected when delivered to our physical address or via email.
13.3. Entire Agreement. This Agreement constitutes the entire agreement between you and Frakture regarding your use of Frakture and specifically includes all of the terms incorporated herein as well as all applicable Order Forms. By accepting this Agreement, you affirm that you fully understand this Agreement and believe it is fair and reasonable.
13.4. Survivability. All provisions that by their sense, context, or effect the parties intend to survive the termination of this Agreement shall survive the termination of this Agreement for any reason, including the confidentiality provisions set forth in this Agreement.
13.5. Severability. If a court finds that any provision or provisions of this Agreement are invalid or otherwise unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. A court may reform any provision deemed invalid or unenforceable in order to affect this Agreement’s expressed intentions.
13.6. Governing Law. The laws of the District of Columbia shall govern this Agreement except as to choice-of-law principles, which shall be governed by this Agreement.
13.7. Legal Representation. Each party has had the opportunity to seek advice from independent legal counsel.
13.8. Independent Contractor. Frakture is an independent contractor for you. This Agreement does not in any way create a joint venture, nor does it make you and Frakture partners or create a principal-agent relationship between us. Frakture is specifically responsible for the payment of all appropriate taxes and fees arising out of our performance of this Agreement and the receipt of your payments. Frakture shall not represent itself as your agent or act in any other manner inconsistent with its status as an independent contractor for you without your prior written approval.