Terms - Foxtrot

FOXTROT SYSTEMS, INC.

TERMS OF USE
Last revised March 1, 2018

Foxtrot Systems, Inc., a Delaware corporation (“we”, “us”, or “Foxtrot”), operates the foxtrotsystems.com / foxtrot.io website, including all sub-sites and micro-sites controlled by us, and any related smartphone or mobile application (collectively, the “Site”) and the Foxtrot fleet management and route optimization and planning services offered through the Site (collectively, the “Foxtrot Services”). By registering with Foxtrot or by using the Site or the Foxtrot Services, you (the “Customer” or “you”) agree to be legally bound by the following terms and conditions (this “Agreement”) just as if you had signed a physical copy of this Agreement. If you are using the Site or the Foxtrot Services on behalf of an organization, the terms “you” and “Customer” will include such organization. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT REGISTER WITH FOXTROT AND YOU MUST NOT USE THE SITE OR THE FOXTROT SERVICES. This Agreement may be supplemented by additional terms and conditions pertaining to specific content and activities which may be notified to you in the course of your use of the Foxtrot Services (e.g. when signing up for a specific level of Foxtrot Services, when upgrading your Foxtrot Account (as defined below), etc). You agree and understand that such additional terms and conditions are hereby incorporated by reference into this Agreement.

  1. Subscription Information; Accessing the Foxtrot Services.
  2. To subscribe for the Foxtrot Services and obtain access to password-protected areas of the Site, you must establish an account through the Site (a “Foxtrot Account”) by providing us with current, complete and accurate information as prompted by the online enrollment form and by selecting a password, the confidentiality of which shall be your responsibility. You may not use anyone else’s Foxtrot Account in connection with your use of the Foxtrot Services, or permit anyone else to use the Foxtrot Services or to access password-protected areas of the Site using your Foxtrot Account. You agree to notify us immediately of any actual or suspected unauthorized use of your Foxtrot Account, or any other breach of security. We reserve the right to refuse any subscription for any reason. Access to the Foxtrot Services may be delayed or cancelled if we are not given completely accurate information and/or if we are unable to contact the person who has subscribed.

    One way that Customers can interact with the Foxtrot Services is by manually or programmatically transmitting or uploading to us fleet, route-planning, and/or other data and information (collectively, “User Data”) in the following ways: (a) by using the Foxtrot web interface or the Foxtrot mobile application, which will send us data such as location, speed, etc.; (b) programmatically through the Foxtrot Application Program Interface (the “API”). You agree that you shall not disclose the API to any third party or use the API other than as reasonably required in connection with your receipt of the Foxtrot Services hereunder.

  3. Charges and Payment
  4. The Foxtrot Services are made available to Customers at graded levels (including based on per-vehicle fees, and pursuant to promotional or free trials) through the Site in exchange for accordingly graded monthly fees (such fees, “Charges”). Customers may upgrade or downgrade their service level by following the instructions on the Site. Details of each Foxtrot Services level and the Charges associated therewith are provided at the point of purchase, and any additional terms or conditions contained on those pages are incorporated into this Agreement by reference. Additional functionality and services may be offered or provided by us from time to time and these will be described on the Site. Services requiring additional Charges which have not been previously agreed upon will be notified to you, and your agreement to be responsible for any such additional Charges will be required, before any such additional Charge will be applied.

    Foxtrot reserves the right to increase its fees at any time on 60 days’ notice to Customer. If Customer objects to the fee increase, Customer may terminate its Foxtrot Account in accordance with the provisions of Section 7.4. If Customer does not exercise its right of termination during such period, Customer will be deemed to have accepted the increased fees.

    Payment of Charges for the Foxtrot Services is required in full in advance at the beginning of each month by credit or debit card. The billing period for your Foxtrot Account begins upon your initial purchase of the Foxtrot Services, and renews automatically each month unless you cancel your Foxtrot Account in accordance with the provisions of Section 7.4. Foxtrot will charge your credit or debit card monthly for the Charges relating to the Foxtrot Services associated with your Foxtrot Account, as described in this Section 2.3, and you hereby authorize Foxtrot to automatically charge your credit or debit card for such Charges.

    You understand that, once charged, the Charges described above are non-refundable, except to the extent otherwise expressly set forth herein. You agree and represent that all information you provide for the purpose of subscribing to the Foxtrot Services is accurate, complete and current, and you agree to notify Foxtrot of any changes to the credit or debit card information associated with your Foxtrot Account, including changes in billing address and expiration dates. If Foxtrot does not receive payment from the issuer of the credit or debit card associated with your Foxtrot Account, you agree to pay all amounts due upon demand directly to Foxtrot, and Foxtrot further reserves the right to either suspend or terminate your Foxtrot Account and your access to the Foxtrot Services in such circumstances.

    If credit is extended by Foxtrot to a Customer, all Charges must be paid within 30 days of issuance of our invoice. Any amounts which are not paid when due and payable will bear interest from the date such amounts are due and payable at the rate of 1.5% per month, or, if lower, the maximum rate allowable under applicable law.

    In addition to the Charges, Customers must pay to us, or to the relevant taxing authority, as appropriate, all applicable sales, use, goods and services, value added or other taxes payable with respect to the Foxtrot Services (other than taxes levied or imposed on our income). In all cases, the amounts due under this Agreement will be paid by the Customer to us in full without any right of set-off or deduction.

  5. Usage Limits
  6. Customers can upload data only in connection with that number of vehicles for which such Customer is paying Charges in connection with its Foxtrot Account, which is referred to as the “Usage Limit.” Customers can manage their Foxtrot Account through the Site by adding to or reducing the number of vehicles for which they want the Foxtrot Services to be available and for which Charges will apply. If a Customer exceeds its Usage Limit, such Customer’s Foxtrot Account may be suspended until such Customer has subscribed for the appropriate Charges.

  7. Trial Accounts
  8. Customers who are provided with a free or trial Foxtrot Account or who are otherwise provided with any other promotional Foxtrot Services for which they have not paid a Charge acknowledge and agree that such services are provided “as is” and so, to the fullest extent permitted by law, those services are provided without any warranties or representations whatsoever and the Customer agrees to avail itself of such services entirely at its own risk, as further described in Section 11.3.

  9. Conditions on Using the Site and the Foxtrot Services
  10. The Site and the Foxtrot Services are the property of Foxtrot. Except as expressly provided below in the case of User Data, all the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on or made available through the Site, and any of the foregoing sent to you by e-mail or other means (collectively, the “Site Content”) are proprietary to us or to third parties.

    Subject to and in accordance with the terms and conditions of this Agreement (including, for clarity, payment of all applicable Charges), Foxtrot grants Customer the non-exclusive, non-transferable and time-limited right and license: (a) to access and use for Customer’s internal business purposes the Foxtrot Services, and (b) to download, access and print the Site Content in reasonable limited quantities in the format of Customer’s choosing for Customer’s internal business purposes, provided that: (i) your license rights set forth in this Section 5.2 do not provide you with any right to receive a copy of the object code or source code to the software used by Foxtrot on the Site or to deliver the Foxtrot Services (the “Software”), (ii) you may not modify the Site Content, (iii) any displays or print outs of the Site Content must be marked “© Foxtrot Systems, Inc. 2018. All rights reserved.” (with the year reference revised, as applicable) and (iv) you may not remove any copyright, trademark or other proprietary notices that have been placed in the Site Content. Except as expressly permitted above, modification, reproduction, redistribution, republication, uploading, posting, transmitting, distributing or otherwise exploiting in any manner the Foxtrot Services or any portion of the Site Content, is strictly prohibited without the prior written permission of Foxtrot.

    Customer may not: (a) transfer to any other party any of its rights to use the Foxtrot Services; (b) sell, rent or lease the Foxtrot Services; (c) create any derivative works based upon the Foxtrot Services; (d) bundle or embed the Foxtrot Services with or into other products or services for provision to third parties; (e) copy any feature, design or graphic in, or reverse engineer or derive the source code of the Software; (f) access the Foxtrot Services in order to build a competitive solution or to assist someone else to build a competitive solution; (g) use any robot, spider, scraper or other automated means to access the Site, or engage in any scraping, data-mining, harvesting, screen-scraping, data aggregating or indexing of the Site; or (h) use the Foxtrot Services in a way that violates any criminal or civil law.

    The marks FOXTROT, and the Foxtrot logoare registered or unregistered trademarks of Foxtrot, and may not be used by Customer in connection with any service or product, or in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Foxtrot. Any use of such marks, or any others displayed on the Site, will inure solely to the benefit of their respective owners.

    Subject to Customer’s advance permission, Foxtrot may, during the term of this Agreement, list Customer as a customer on the Site and in its marketing materials, and may use Customer’s name and logo for such purposes.Foxtrot will comply with Customer’s reasonable instructions as to how its name and logo should be presented and all use of such name and logo shall inure to Customer.

    Customer acknowledges that the Foxtrot Services are hosted by third party hosting providers (the “Hosting Contractors”). Foxtrot may change its Hosting Contractors at any time. Customer’s use of the Foxtrot Services is subject to any applicable restrictions imposed by the Hosting Contractors. Notwithstanding any other provision of this Agreement, Foxtrot shall not be liable for any problems, failures, defects or errors with the Foxtrot Services to the extent caused by the Hosting Contractors. Customer acknowledges that the fees payable for the Foxtrot Services reflect the fact that Foxtrot is not responsible for the acts and omissions of the Hosting Contractors, and that Foxtrot could not afford to provide the Foxtrot Services if it were responsible for the acts or omissions of the Hosting Contractors. Customer is responsible for providing its own hardware, software and Internet connection for the purposes of use of the Foxtrot Services.

    You agree, and represent and warrant, that your use of the Foxtrot Services, the Site and the Site Content, or any portion thereof, will be consistent with the foregoing license, covenants and restrictions and will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties. In addition, you agree that you will comply with all applicable laws, regulations and ordinances relating to the Foxtrot Services, the Site, the Site Content or your use of them, and you will be solely responsible for your own violations of any of them.

  11. User Data
  12. You are solely responsible for all of your User Data. Do not upload or otherwise transmit User Data you do not have permission to send to us. You are responsible for creating backup copies of any User Data.

      6.1.1 You hereby grant us, and agree to grant us, an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license, with the right to sublicense through multiple tiers, to (a) use, and otherwise exploit in any manner, your User Data for the purposes of delivering the Foxtrot Services to you; (b) use, copy, create derivative works of, adapt, modify, and otherwise exploit in any manner your User Data for the purposes of improving, developing and marketing the Foxtrot Services; and (c) disclose anonymized and/or aggregated versions of any User Data to third parties for any purpose or use, provided that such anonymized or aggregated data shall not identify any particular Customer; which license continues after the termination of this Agreement.

      6.1.2 You hereby represent and warrant that you own all proprietary rights in your User Data or, with respect to any of your User Data you do not own, you have the full authority and right to transmit the User Data and to grant the licenses granted hereunder, and that the exercise by Foxtrot of the license rights granted by you shall not infringe any third party intellectual property rights, nor violate any rights of privacy or publicity, nor be defamatory, libelous or obscene, nor violate any other right, privilege or interest of any third party.

    Foxtrot is under no obligation to edit or control any User Data, and will not be in any way responsible or liable for any User Data or your use of it. Subject to the rights granted to us in this Agreement, you own all of your User Data and any intellectual property rights associated with your User Data.

  13. Term and Termination
  14. For viewers of the Site who do not purchase or subscribe to the Foxtrot Services, this Agreement applies throughout the period of their use of the Site.

    Customers who sign up to the Foxtrot Services are required to expressly accept this Agreement through completing the new Customer sign-up form and electronically affirming their acceptance of this Agreement (e.g. by selecting or “clicking” a box or other field indicated for such purpose on the Site). Thereafter this Agreement shall remain in full force and effect until terminated in accordance with this Section 7 or, in the case of any free or trial Foxtrot Account provided in accordance with Section 4, until the expiration of the trial period associated with such account.

    Foxtrot may terminate this Agreement (a) at any time, effective immediately, upon written notice (including via electronic mail) to Customer, if Customer: (i) breaches any of its material obligations hereunder and fails to cure such breach, (ii) becomes insolvent or has a receiver, administrator, liquidator or examiner appointed over all or part of its assets, (iii) becomes the subject of a resolution, petition or order for winding up or bankruptcy, or (iv) makes an assignment or arrangement for the benefit of its creditors; (b) for any reason or for no reason effective fifteen (15) days after written notification to the Customer of such termination; or (c) immediately if, at any time, we cease providing the Foxtrot Services. In the case of any termination pursuant to clauses b or c of this Section 7.3, we will refund the Customer a prorated portion of any Charges paid for the month in which such termination takes place to reflect the portion of the month remaining after termination.

    The Customer may terminate this Agreement and its subscription to the Foxtrot Services at any time by electronic mail to hello@foxtrotsystems.com or as may otherwise be permitted through the Foxtrot Account editing functionality of the Site. Any such termination will become effective within three business days after Foxtrot receives the Customer’s request.

    On termination or expiry of this Agreement for any reason, the Customer will remain liable to us for any outstanding Charges owed.

    Without limitation of the foregoing, we may suspend or terminate the Foxtrot Services without notice if the Customer shall (a) fail to pay any Charges when due, (b) if the Foxtrot Services are used in a manner contrary to the law the terms of this Agreement or (c) for scheduled or emergency maintenance.

    Sections 7, 10, 11.6 through 11.7, 12, 16 and 18, as well as any other provisions herein which by their nature should reasonably survive termination or expiration hereof, shall survive termination or expiration of this Agreement.

  15. Services Restrictions
  16. No user of the Site shall:

      8.1.1 Submit, post, upload, or otherwise transmit to the Site any User Data (a) in violation of, or in connection with any violation of, any local, state, national or international laws; (b) that is libelous, defamatory, threatening, abusive, scandalous, obscene or pornographic; (c) that contains advertising or promotional material or constitutes commercial activity of any sort or, in the sole discretion of Foxtrot, constitutes “spam”; (d) that infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party; (e) that contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury, loss or damage to the material’s readers or others; or (f) that contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of the Foxtrot Services or of any computer software, hardware or telecommunications equipment;

      8.1.2 Distribute or otherwise use any User Data in violation of, or in connection with any violation of, any local, state, national or international laws;

      8.1.3 Impersonate any person or entity, or forge or manipulate headers to disguise the origin of any User Data;

      8.1.4 Harvest or otherwise collect information about others, including email addresses, without their consent; or

      8.1.5 Engage in any other conduct that interferes with the Site, Site Content, or Foxtrot Services or that restricts or inhibits any other person from using or enjoying the same, or which, in Foxtrot’s sole judgment, exposes Foxtrot or any of their officers, directors, employees or agents to any liability or detriment of any type.

  17. Customer Support
  18. Foxtrot will provide Customer with basic support services with respect to the Foxtrot Services, in accordance with Foxtrot’s support service offerings that are in effect from time-to-time and available to similar customers of the Foxtrot Services at no additional charge beyond the Charges paid by Customer. We do not guarantee that we will resolve all errors or issues reported under support, or that resolution will occur within particular timeframes. We are not required to provide Customer with any implementation, customization or professional services under this Agreement.

  19. Ideas Submitted to Foxtrot
  20. In the event that you submit ideas or suggestions for the Site, Site Content or Foxtrot Services (“Services Comments”), the Services Comments will be deemed, and will remain, the sole property of Foxtrot. None of the Services Comments will be subject to any obligation of confidence on the part of Foxtrot, and Foxtrot will not be liable for any use or disclosure of any Services Comments. Without limiting the foregoing, Foxtrot will be entitled to unrestricted use and other exploitation of the Services Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Services Comments.

  21. Warranties; Exclusion and Limitation of Liability
  22. If the person entering and/or signing this Agreement is doing so for the purpose of obtaining the Foxtrot Services on behalf of an organization, such person hereby represents and warrants that he/she has the authority to bind such organization as Customer to this Agreement. Each party represents and warrants that: (a) it has all right, power and authority to enter into and perform this Agreement; (b) the execution of this Agreement and performance of this Agreement will not violate any other agreement to which it is a party; (c) this Agreement constitutes the legal, valid and binding obligation of such party; and (d) it shall perform this Agreement in accordance with all applicable laws. No advice or information, whether oral or written, obtained by you from Foxtrot, or through the Foxtrot Services, the Site or Site Content will create any warranty not expressly stated herein.

    If you are a paying Foxtrot subscriber, Foxtrot warrants that the Foxtrot Services will materially perform the functions described for them on the Site, provided, however, the foregoing warranty shall not apply to the extent that any problem with the Foxtrot Services is caused by any act or omission of the Customer. Your sole and exclusive remedy, and Foxtrot’s sole and exclusive liability, with respect to any breach of this warranty shall be that Foxtrot shall remedy the non-conformance upon receipt of written notice from you detailing such non-conformance or if Foxtrot is unable to do so, Foxtrot will refund a portion of the Charges you paid for the Foxtrot Services during the period of non-conformance (provided that, for the purpose of such refund calculation, such period shall not begin until you have reported such non-conformance to Foxtrot in writing as part of an express warranty claim under this paragraph).

    If you are not a paying Foxtrot subscriber, you use the Foxtrot Services, the Site Content and the Site at our own risk, and you acknowledge that you are responsible for verifying and confirming the quality, performance, accuracy and reliability of the Foxtrot Services and of any data obtained by you from the Foxtrot Services.

    EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.2 ABOVE, OR TO THE EXTENT THE FOLLOWING DISCLAIMERS IN THIS PARAGRAPH ARE NOT PERMITTED BY APPLICABLE LAW: (A) THE FOXTROT SERVICES, THE SITE AND THE SITE CONTENT ARE PROVIDED IN “AS IS” CONDITION. (B) FOXTROT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE FOXTROT SERVICES, THE SITE CONTENT OR THE SITE. (C) FOXTROT EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; THAT THE FOXTROT SERVICES, THE SITE AND THE SITE CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE FOXTROT SERVICES, THE SITE OR THE SITE CONTENT; AND AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE FOXTROT SERVICES, THE SITE OR THE SITE CONTENT.

    WITHOUT LIMITATION OF THE FOREGOING, THE INFORMATION, SITE CONTENT, SOFTWARE, PRODUCTS, AND FOXTROT SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE (i) ARE INFORMATIONAL IN NATURE ONLY, AND ARE NO SUBSTITUTE FOR YOUR OWN JUDGMENT; (ii) SHOULD BE CONFIRMED WITH RELIABLE SOURCES; AND (iii) ARE NOT FOR IN-VEHICLE USE BY THE OPERATOR OF ANY VEHICLE WHILE SUCH VEHICLE IS IN MOTION (EXCEPT TO THE EXTENT THEY INCLUDE HANDS-FREE NAVIGATIONAL ASSISTANCE FUNCTIONALITY), DO NOT CONSTITUTE ANY FORM OF DRIVER EDUCATION OR TRAINING, AND ARE NOT A SUBSTITUTE FOR ANY IN-VEHICLE NAVIGATION SYSTEM. YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR DRIVER EDUCATION AND TRAINING NEEDS.

    THE FOXTROT SERVICES, SITE CONTENT AND SITE ARE NOT INTENDED FOR USE IN ANY SITUATION IN WHICH THE FAILURE OF THE FOXTROT SERVICES, SITE CONTENT OR SITE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

    ANY INFORMATION PROVIDED BY THE FOXTROT SERVICES IS NOT INTENDED TO REPLACE INFORMATION PRESENTED ON THE ROAD (INCLUDING, WITHOUT LIMITATION, TRAFFIC SIGNS OR SIGNALS, DETOURS, POLICE) AND IF ANY SUCH INFORMATION PRESENTED ON THE ROAD INSTRUCTS DIFFERENTLY THAN THE FOXTROT SERVICES, YOU MUST NOT RELY ON THE FOXTROT SERVICES.

    UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM Foxtrot ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, OR THE FOXTROT SERVICES, SITE OR SITE CONTENT, EVEN IF Foxtrot HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

    FOXTROT’S MAXIMUM AGGREGATE LIABILITY TO YOU WITH RESPECT TO ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, OR THE FOXTROT SERVICES, SITE OR SITE CONTENT SHALL BE THE GREATER OF $10 OR THE AMOUNT OF ANY CHARGES RECEIVED BY FOXTROT FROM YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING REMEDIES AND LIMITATIONS SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION 11.6 WERE AND ARE AN EXPRESS PART OF THE BARGAIN BETWEEN FOXTROT AND THE CUSTOMER AND WERE A CONTROLLING FACTOR IN THE SETTING OF ANY FEES PAYABLE TO FOXTROT.

    SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

    Except for failure to make payments when due, neither party shall be liable to the other by reason of any failure in performance of this Agreement by such party if the failure arises out of any cause beyond the reasonable control of such party, including, but not limited to, the unavailability or faulty performance of communication networks or energy sources, any act of God, any act or omission of governmental authority, fires, strikes, industrial dispute, riots, war, embargo, or denial of service (DoS) attacks.

  23. Indemnity
  24. You shall defend, indemnify and hold harmless Foxtrot against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees arising in connection with (a) your use of the Site or Foxtrot Services, including any User Data, or your breach of any provision of this Agreement; and (b) any use of User Data, or access to the Site or Foxtrot Services, by or for any third party to whom you provide User Data or any access to or benefit from the Site or Foxtrot Services. Foxtrot reserves the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to provide indemnification hereunder. You will cooperate with Foxtrot with respect to such defense and settlement.

  25. Link to the Privacy Policy
  26. Foxtrot operates the website under the Privacy Policy published at https://app.foxtrot.io/privacy and incorporated herein by reference. We urge you to read this policy now and, because the policy is updated from time to time, later at your convenience.

  27. Links
  28. The Site contains links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by us of the content on such third party websites. We are not responsible for the content of linked third party sites and do not make any representations regarding the content or accuracy of materials on such third party websites. If you decide to access linked third-party websites, you do so at your own risk and in accordance with the prevailing terms and conditions of such third party sites.

    We generally welcome the hyper-linking to the Site from other appropriate websites provided we give our consent to the establishment of such links. Notwithstanding the foregoing, we reserve the absolute right to refuse to consent to such links without giving reasons. Any links to the Site from another website must be presented in such a manner that the viewing of the Site is not impaired by framing or similar techniques that may impair the visitor’s user experience.

  29. Reserved
  30. Governing Law and Dispute Resolution
  31. All disputes arising out of or relating to this Agreement, the Site or the Foxtrot Services shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect (for information on the AAA and its rules, see www.adr.org.) and the further procedures set forth herein, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. The arbitration shall be conducted in Boston, Massachusetts unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, you may at your option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. Foxtrot does not hereby waive any defense that such jurisdiction may be lacking in your state. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to this Agreement, the Site or the Foxtrot Services shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting Boston, Massachusetts except that, following confirmation of an arbitration award in a state or federal court in Boston, Massachusetts, a judgment arising therefrom may be executed in any court of competent jurisdiction.

  32. Modifications
  33. This version of this Agreement became effective on March 1, 2018 and amends, restates and replaces any version effective prior to such date. We reserve the right, in our sole discretion, to modify this Agreement, in whole or in part, at any time, with or without your consent. Notification of any amendment will be posted on the Site and will be effective immediately. You are under an obligation to review the current version of this Agreement and other Foxtrot policies before using the Site or the Foxtrot Services. Your use of the Site or the Foxtrot Services following any amendment of this Agreement will signify your assent to and acceptance of its revised terms.

  34. General
  35. The headings to the clauses in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

    A waiver by either party of any breach by any other party of any other terms, provisions or conditions of this Agreement or the acquiescence of such party to any act (whether by commission or omission) which but for such acquiescence would be a breach as aforesaid shall not constitute a general waiver of such term, provision or condition or of any subsequent act contrary thereto.

    If any provision of this Agreement is invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.

    Neither party shall assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, not unreasonably withheld; provided that, without such consent, (a) Foxtrot may freely assign this Agreement, or any rights or obligations hereunder, and (b) either party may assign this Agreement as a whole to the successor entity in the event of any merger or acquisition of all, or substantially all of such party’s assets, as long as the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment in breach of this Section is void.

    This Agreement represents the entirety of the understanding of the parties concerning the subject matter hereof and overrides and supersedes all prior promises, representations, undertakings, understandings, arrangements, agreements, whether written or oral, concerning the same which are hereby revoked by mutual consent of the parties. The Customer is not relying on any warranties or representations which are not expressly set out in this Agreement.

    Foxtrot may give written notices issued in connection with this Agreement by email to the Customer at the email address given by the Customer when creating its Foxtrot Account, and any such notice shall be effective upon confirmation of transmission to such email address.

    You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes.

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