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Forward Thinking Systems End User License Agreement

This End User License Agreement (this “Agreement”) applies to you (“You”, “you” and “your”) as a user of any software, service, equipment, or other solution offered, sold, or licensed by Forward Thinking Systems LLC (“FTS” or “we”), including without limitation, FleetCam, IntelliHub, Field Warrior, Route Matrix, Monarch, DriveShield and Titan (collectively, the “Services”). By using any of the Services, you accept all and agree to the terms and conditions of this Agreement. If You do not wish to be bound by this Agreement, You must discontinue use of the Products immediately. You may not use any of the Products until You have agreed to the terms of this Agreement.

You acknowledge that your use of the Services is: (a) allowed by express authorization from a customer of the Services (“Customer”); and (b) subject to the terms and conditions of any and all agreements between Customer and FTS (or its resellers) (collectively, the “Contract”).

  1. Software License. “Software” means any software product delivered by FTS to You in, including without limitation, any of the following: web-based software; scripts/code loaded on Hardware; applications for use on mobile devices; and all other web-based services provided to You. Subject to the terms of this Agreement and You’s payment of all service fees when due under this Agreement, FTS hereby grants you a limited, non-transferable, non-exclusive right and license to access and use the Software solely in conjunction with Your access and use of the services, solely for Your internal business purposes. The Software is only licensed pursuant to the terms contained in this Agreement and the Contract, not sold. The foregoing license shall not include any right to: (i) copy, reproduce, modify or create any derivative work of any Software; (ii) sell, rent, lease, loan, license, sublicense, provide, distribute or otherwise transfer Software to any third party; (iii) use the Software for third-party training, commercial time-sharing or service bureau use; (iv) cause or permit the disassembly, decompilation, or reverse engineering of any Software or otherwise attempt to gain access to the source code of any Software; (v) grant access to the Software to any third party or other user without the authorization and requisite license from FTS or (vi) cause or permit any third party to do any of the foregoing. You receives no title or ownership rights to any Software. Except for the limited revocable license granted in this Section, all right, title and interest in the Software shall remain the exclusive property of FTS or its licensors. The Services may contain technological measures (including the ability to disable all or part of the Services) designed to prevent the illegal usage of the Services or other violations of this Agreement or applicable law. You agrees not to circumvent, attempt to circumvent, or permit others to circumvent such measures.
  2. Software Updates. FTS may continuously improve the Services and may, from time to time, cause updates and patches to the Software and Services to be automatically installed, with or without prior notification to You, or FTS may provide access to updates through its website, at its discretion. You hereby consent to such automatic installations and agrees to use only the updated version of any Software once it has been installed.
  3. Disclaimer. FTS MAKES, AND YOU RECEIVE, NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE EQUIPMENT, THE SERVICES, AND/OR THE SOFTWARE, AND FTS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
  4. Limitation of Liability. FTS SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, NOR FOR ANY LOSS OF BUSINESS, REVENUE OR DATA; INTERRUPTION OF BUSINESS; LOST PROFITS OR GOODWILL; INCREASED COSTS OF OPERATION; OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR UNDER THIS AGREEMENT, EVEN IF FTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH. IN NO EVENT SHALL FTS HAVE ANY OBLIGATION OR LIABILITY TO YOU. THE LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND APPLY WHETHER THE CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, FRAUD, MISREPRESENTATION, OR OTHER LEGAL OR EQUITABLE THEORY. FTS SHALL NOT BE RESPONSIBLE FOR (A) ANY CLAIMS AGAINST FTS THAT ARISE FROM OR RELATE TO YOU’S USE OF THE EQUIPMENT OR (B) ANY THIRD-PARTY CLAIMS AGAINST YOU OR YOU.
  5. Compliance; Security. You shall comply with all applicable laws in connection with your use of the Services. Without limiting the generality of the foregoing sentence, You shall not export or re-export the Services directly or indirectly in contravention of any laws and regulations. You also agrees to comply with any safety-related or regulatory compliance instructions communicated to You in connection with the use of the Services. You are solely responsible for your failure to keep all user identifications and passwords (your “Login Credentials”) secure. If you believe the security of your Login Credentials has been compromised, or you suspect unauthorized use, you will promptly notify us. We will be entitled to treat all communications, instructions and transactions as authorized by you if your Login Credentials are used unless you have notified us of compromise or unauthorized use of your Login Credentials. If we suspect, in our reasonable opinion, fraudulent or unauthorized activity on your account, we reserve the right to terminate or suspend your access to our website or any applicable services or both and will contact you to advise of this decision.
  6. Restrictions. To the fullest extent permissible under applicable law, You agree not to do any of the following without FTS’s express prior written consent: (a) disclose, transfer or transmit in any manner any Services, Software or other copyrightable or licensed elements of the Services whether temporarily or permanently; (b) modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any elements of the Services; (c) use the Services in a manner that violates laws or the rights of others; (d) use the Services as part of a fail-safe design for dangerous or emergency applications, as part of control or surveillance measures for hazardous materials or life support systems, or in connection with munitions or weapons; (e) engage in any activity that interferes with or disrupts services or any computer, software, network or other device used to provide such services; (f) intentionally circumvent rate plan restrictions or program restrictions as specified in the applicable program documentation; (g) use the Services as the primary basis for evaluating an individual for employment, promotion, reassignment or retention as an employee; or (h) attempt, or cause, permit or encourage any other person to do any of the foregoing.
  7. Data Collection. You recognize and acknowledge that FTS may collect data from You’s operations received in the normal course of the provision of the service component hereunder (“Your Data”), aggregate such You Data with similar data received from the operations of its other Yous, process and assemble such aggregated data and sell such data to third parties, all on a strictly anonymous basis. You hereby grants to FTS any and all consent and authority that may be required therefor. You acknowledge that FTS may store and use You Data pursuant to this Section 5 for at least a two (2) year period following FTS’s acquisition of You Data. You hereby grant to FTS a non-exclusive, fully paid, world-wide and irrevocable license to use Your Data and to copy, anonymize, aggregate, process and display Your Data, to derive anonymous statistical and usage data related to the Service (“Aggregated Data“) to compile, combine or incorporate such Aggregated Data with or into other similar data and information available, derived or obtained from other clients, Yous, licensees or users of FTS, or otherwise (collectively, Aggregated Data and such compiled, combined or incorporated data and information shall be referred to as “FTS Data“), to permit FTS to provide additional services to its customers, including the copying, publication, distribution, display, licensing or sale of FTS Data and related or similar other statistics or data to third parties pursuant to a separate licensing or services arrangement or agreement. FTS will be the owner of all right, title and interest in and to Aggregated Data and FTS Data. FTS maintains reasonable technical and organizational security and data storage policies and measures for facilities within its control. You shall not provide third parties with access to any Software in, or non-public information relating to, the Services without FTS’s prior written consent, except to Your own employees solely to the extent required to use the Services provided such employees are subject to confidentiality terms and use restrictions similar to those set forth herein. FTS will not disclose Your Fleet Data (as defined herein) to any third party except in the following circumstances: (a) to FTS’s service providers who have a need to know in order to assist FTS in providing the Services to You, and who have all agreed to confidentiality terms and use restrictions similar to those set forth herein; (b) with Your consent; (c) to comply with a subpoena, warrant, court order or other legal requirement (but to the extent practicable, and unless prohibited from doing so, FTS will provide You with notice of the disclosure); or (d) where a company acquires the assets of FTS. You understand and agree that any third party to which You grant access to the Services may also have access to Your Fleet Data.
  8. Your Data. FTS claims no ownership of any data generated by You or the equipment in Your vehicle processed by the Services or any data You input into the Services, which may include information about the location of You, Your vehicle, the vehicle in which it is installed (including the surrounding environment) or, potentially, the driver of such vehicle (collectively, “Fleet Data”). You instruct FTS to process Fleet Data: (a) to provide, maintain and improve the Services; (b) to carry out FTS’s obligations under this Agreement; (c) to carry out FTS’s obligations under applicable law; (d) to allow a customer-authorized reseller access to the Fleet Data if such functionality is activated; and (e) as otherwise directed by You.
  9. Indemnification. To the extent permitted by law, You shall indemnify and hold harmless FTS, its affiliates and each of their respective officers, directors, employees, agents, subcontractors, successors and assigns (each an “Indemnified Party”), from and against any and all damages, liabilities, costs, losses and expenses (including reasonable legal costs and fees) arising from or related to any claim, demand, complaint or action by a third party arising out of or incident to: (a) Your breach of this Agreement including, but not limited to, any FlowThru Terms; or (b) Your negligence or willful misconduct.
  10. Termination by FTS. FTS reserves the right to terminate this Agreement in whole or in part with or without notice if You breach any provision of this Agreement or any FlowThru Terms. Upon any termination of this Agreement: (a) any and all rights granted to You under this Agreement shall immediately cease; (b) You shall destroy, to the extent practicable, all copies of the Software in Your possession or control; and(c) You shall cease all usage of the Services; provided that, termination of this Agreement shall not affect Your payment and other obligations under any agreement with FTS or reseller.
  11. FlowThru Terms. You agree and acknowledge that the Services provided by FTS hereunder may be subject to certain requirements and terms of third parties, which may be amended, modified, and substituted from time to time (such requirements and terms, as amended, modified, or substituted from time to time, the “FlowThru Terms”). You agree to comply with all FlowThru Terms located at https://www.ftsgps.com/legal/flow-through-terms/.
  12. This Agreement and any rights granted to You under this Agreement may not be transferred or assigned by You, in whole or in part, whether voluntarily, by operation of law, or otherwise, without FTS’s prior written consent and any such attempted assignment or transfer shall be null and void.
  13. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case serving the jurisdiction County of Nassau County, New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
  14. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving.
  15. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  16. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  17. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Last modified July 31, 2024