Skip to main content

Forward Thinking Systems Terms of Service

THESE TERMS OF SERVICE (these “Terms of Service”) ARE BINDING UPON ANY USER (as defined herein) OF products (as defined herein) BY FORWARD THINKING SYSTEMS LLC, A NEW YORK LIMITED LIABILITY COMPANY (“fts”), WHICH IS A PARTY TO A User agreement (as defined herein) AND IS EFFECTIVE AS OF THE EFFECTIVE DATE SET FORTH IN SUCH User Agreement.

By using any of the Products, User accepts and agrees to all of the terms and conditions of this Terms of Service.  If User does not wish to be bound by these Terms of Service, User must discontinue use of the Products immediately.  User may not use any of the Products until User has accepted these Terms of Service.

By executing a User Agreement, by purchasing Products or otherwise entering into a User Agreement with FTS or a FTS Reseller, or any other entity or individual for the purchase of Products or under which Products are made available to User, or by otherwise accessing and/or using the Products, whichever is the earlier, User accepts and agrees to be bound by these Terms of Service. If User does not agree to these Terms of Service or User is not authorized to access and/or use the Products, User shall not access or use the Products. User may not use the Products if it is a direct competitor of FTS, as determined in FTS’s sole discretion, except with FTS’s prior written consent. User expressly acknowledges that its use of the Products is subject to the terms of its User Agreement and these Terms of Service.

THE PARTIES ACKNOWLEDGE AND AGREE THAT, EXCEPT WITH RESPECT TO THE DATA PROVISIONS, IF THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE AND THE TERMS AND CONDITIONS OF ANY USER AGREEMENT, THE TERMS AND CONDITIONS OF THE USER AGREEMENT SHALL SUPERSEDE AND CONTROL; PROVIDED THAT, NOTWITHSTANDING THE TERMS OF THE ANY USER AGREEMENT, USER SHALL BE BOUND BY THE DATA PROVISION; AND PROVIDED FURTHER THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, FTS SHALL NOT BE BOUND BY THE TERMS OF ANY USER AGREEMENT TO WHICH FTS IS NOT A PARTY, AND FTS SHALL ONLY BE BOUND BY THESE TERMS OF SERVICE AND ANY USER AGREEMENT TO WHICH IT IS A DIRECT PARTY.

1. Definitions

In these Terms of Service, the following definitions apply:  

  1. “Data Provisions” means the terms, conditions, and provisions of the DPA, the EULA, FlowThru Terms, and the Privacy Policy.
  2. “Equipment” means any equipment purchased by User under a User Agreement.
  3. “Party” means User or FTS
  4. “Products” means any software, equipment, or other solution offered, sold, licensed, or sub-licensed (including without limitation, FleetCam, IntelliHub, Field Warrior, Route Matrix, Monarch, DriveShield, and Titan) to a User by FTS or a Reseller.
  5. “Reseller” means any third party authorized by FTS to offer, sell, license or sublicense the Products.
  6. “User” means any party which is being licensed, sold, or offered any Products under a User Agreement.
  7. “User Agreement” means any agreement between a User and FTS or a Reseller, pursuant to which certain Products are being licensed, sold, or offered to User.

2. Purchase

  1. User acknowledges that it has ordered certain subscriptions to certain services provided by FTS and described in the User Agreement (hereinafter the “Service”) during the Term. User shall use the Equipment solely for User’s internal business use in connection with the Service. Subject to the terms of the User Agreement, risk of loss in and to the Equipment shall pass to User FOB Destination.  User may not resell, assign or transfer the Equipment to any third party without the prior written consent of FTS, whose consent may be withheld in its sole and absolute discretion.  FTS shall not be liable for any delay in transportation of the Equipment.
  2. Purchase Price – Equipment. User shall pay the Purchase Price for the Products in accordance with the User Agreement. User’s approved method of purchase will be set forth in the User Agreement. For any User Agreement with FTS, FTS shall invoice the Purchase Price as set forth in the User Agreement for any such User Agreement (plus all taxes set forth above in the User Agreement) on the Effective Date of the User Agreement. If any Equipment is being purchased by User directly from FTS, in the event that FTS extends any credit or payment terms to User for any Equipment being purchased, User hereby grants to FTS a purchase money security interest in such Equipment, whether now or hereafter acquired by User, regardless of where located, until such time that FTS is paid in full for such Equipment, and User agrees to execute any documents requested by FTS to perfect such security interest. Subject to the terms of the User Agreement, all charges, fees and prices herein are exclusive of all federal, state and local withholding, excise, sales, use and similar taxes, fees, surcharges and other charges imposed by any governmental authority or any finance fees that may be charged by a Lender (see section 2 ‎(f) below). User shall pay, at the time of sale or thereafter, all taxes, fees, surcharges and other charges arising out of User’s purchase of the Equipment, unless User provides documentation satisfactory to FTS that User is exempt from same.
  3. Service Fees. User shall pay Service Fees for use of the Service, pursuant to the terms of the User Agreement. The “Term” shall be for the length of the Service Period specified in the User Agreement and shall begin upon the date that Service is activated for User; provided that if Equipment is being shipped to User under these Terms of Service to be used in connection with the Service, the Term shall begin upon the date such Equipment is shipped to User, or as otherwise agreed to in writing by FTS. The “Service Fees” shall be as set forth on in the User Agreement; notwithstanding anything to the contrary herein, if User is purchasing Products directly from FTS, User may prepay (or cause to be paid pursuant to an equipment lease or financing approved by FTS) all of the Service Fees due for the Term at any time. Termination or expiration of the User Agreement shall not relieve User of its obligation to pay in full all remaining Service Fees. In the event that User fails to pay any of the Service Fees, the Purchase Price or any other amounts due to FTS under the User Agreement, or if the User Agreement is terminated pursuant to the terms contained in these Terms of Service, FTS may accelerate all amounts due under any between User Agreement and FTS, and FTS in addition to any other rights and remedies under law, may institute a collection action and seek payment of all then-unpaid Service Fees for the balance of the Term as of the date of termination together with all costs of collection incurred by FTS (including, without limitation, attorneys’ fees and expenses). Except as set forth in the User Agreement, FTS shall invoice the first month’s Service Fees upon shipment of the Equipment to User. FTS reserves the right, during the Term, to suspend User’s use of and access to the Service in the event that User fails to pay any invoice.
  4. Late Fees. Except as set forth in the User Agreement, all amounts due under the User Agreement which are not paid when due shall bear interest at the lesser of (i) the rate of 1.5% per month and (ii) the highest rate permissible under applicable law, calculated daily and compounded monthly. User shall also reimburse FTS for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under the User Agreement or at law (which FTS does not waive by the exercise of any rights hereunder), FTS shall be entitled to suspend the provision of any Services if the User fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
  5. Transaction Costs; Payments. All payments made to FTS pursuant to a User Agreement with FTS made by credit card or check shall be subject to a 3% processing fee. Except as expressly set forth herein, all amounts paid to FTS under a User Agreement are non-refundable. Any credits expressly granted to User in writing under the User Agreement are non-transferable and not redeemable for cash.
  6. Leasing/Financing. If User is purchasing and/or licensing the Products through a leasing or financing entity (a “Lender”), the terms in this Section shall apply. Any obligation User may have to the Lender are solely between Lender and User as may be evidenced by a separate agreement between Lender and User to finance User purchases of the Products (such agreement, a “Leasing Agreement”). User acknowledges and agrees that when User executes the Leasing Agreement, the Lender is prepaying FTS for the Products on User’s behalf and such prepayment is final and cannot be refunded by FTS. User accepts the risk that any Products are not provided or are not satisfactory; provided that this sentence does not affect FTS’s obligations to User under these Terms of Service. If User chooses to discontinue use of the Products for any reason, User will continue to be liable for any outstanding payment obligations specified in the Leasing Agreement. Lender may charge User financing fees, as will be agreed upon separately between Lender and User.

3. Shipment; Installation

FTS shall make commercially reasonable efforts to ship the Equipment shortly after the date set forth on the User Agreement (or if no date is set forth in the User Agreement, then after the Effective Date). If FTS is providing installation to User as specified in the User Agreement, then (a) FTS or its assignee, agent, contractor or subcontractor will provide Standard Installation (as defined below) services for the Equipment pursuant to the terms contained in the User Agreement; and (b) the Parties shall each make commercially reasonable efforts to schedule and complete Standard Installation of the products within thirty (30) days of the date FTS ships the Equipment to User. “Standard Installation” means those services provided by or on behalf of FTS, if FTS is providing installation services to User as specified in the User Agreement, in connection with the installation of Equipment purchased under these Terms of Service. Please note that Standard Installation may include the installation of Equipment in the kick panel, trunk (interior locations), over cab area in cowling, under the front seat or dash, on the window, dash, rear window deck, roof or trunk lid. Standard Installation shall include only installations performed between 8:00 a.m. and 5:00 p.m., Monday through Friday, local time. If FTS is providing installation services to User as specified in the User Agreement, FTS may charge, and User shall pay, a separate additional fee based on FTS’s then-current fees for any Standard or non-Standard Installation services. User acknowledges that, in connection with any installation and maintenance of the Equipment provided by FTS, FTS or its assignees, agents and contractors may perform modifications or alterations to User’s vehicles, including without limitation drill holes, cut panels on the body, or rewire. FTS will not be responsible for, and makes no assurances regarding, the restoration of User’s vehicles to their unmodified or unaltered condition if the Equipment is removed. Notwithstanding anything to the contrary in this Section, User shall be fully responsible for and hereby releases, indemnifies, waives and holds FTS harmless from any loss, damage, claim and all other liability arising from the installation or handling of the Equipment by any party other than FTS (or its assignee, agent, contractor or subcontractor).

4. Equipment Warranty

  1. Limited Warranty. FTS warrants that for the twelve (12) month period beginning on the Effective Date of these Terms of Service (the “Warranty Period”), all Equipment: (i) will be free from material defects in materials and workmanship, and (ii) will substantially conform to any specifications provided to or made available to User and pertaining to such Equipment. The foregoing warranties do not extend to: (i) any failure in the Equipment due to accident, abuse, misuse or negligent or incorrect use, maintenance or storage of the Equipment; (ii) any failure resulting from use in other than a normal and customary manner under normal environmental conditions in a commercial trucking or vehicle application conforming to the Equipment’s instructions; (iii) any failure in the Equipment caused by failing to follow prescribed operating maintenance procedures; (iv) any failure in the Equipment due to modifications, alterations, additions or changes to the Equipment not made or authorized to be made by FTS; or (v) damage caused by force of nature, external causes, or act of any third party (other than FTS or its duly-authorized representative). Except as set forth herein during the Warranty Period, User shall not receive any credit or refund for returned Equipment.
  2. Warranty Procedures. User will, within the Warranty Period, notify FTS of any Equipment containing defects User believes to be covered by the limited warranties provided in paragraph (a) of this Section (the “Limited Warranty”), and will request a Returned Material Authorization (“RMA”) number from FTS. For purposes of this Section, User may notify FTS of any such defect potentially covered by the Limited Warranty by contacting FTS User support (“FTS Support”) by phone at (866) 221-1864 or by email at [email protected]. Provided the defects alleged by User are covered under this Limited Warranty, FTS will (i) issue an RMA number to User promptly following receipt of the request or (ii) arrange with User for an FTS-authorized agent to inspect the Equipment at User’s location; the FTS-authorized agent may issue an RMA number after its inspection. Upon issuance of the RMA number to User, FTS shall, at its sole option and expense, repair or replace the defective Equipment. In the event FTS replaces the defective Equipment, FTS shall ship replacement equipment (“Replacement Equipment”) to User, and shall include therewith written RMA instructions setting forth the steps required by User to return the defective Equipment. Equipment must be removed in the same manner as installed (as set forth in the User Agreement) and User shall promptly return said defective Equipment in accordance with said RMA instructions. If defective Equipment is received by FTS during the applicable Warranty Period, and provided FTS determines, in its reasonable discretion, that the defect in the Equipment is covered by this Limited Warranty, FTS will provide such replacement or repair services at no additional cost to User. Notwithstanding the foregoing, however, in the event the Replacement Equipment is received after expiration of the Warranty Period, or in the event the defective Equipment is not covered by this Limited Warranty, FTS shall charge User, and User shall pay to FTS, for such Replacement Equipment or repair services, at FTS’s then-current list prices; further, in such event, User shall be liable for any shipping and insurance charges incurred in connection with shipment of the defective Equipment and/or Replacement Equipment (as applicable). This Section states User’s sole remedy, and the sole liability of FTS, arising out of the Limited Warranty provided by FTS. Any Replacement Equipment issued to User under these Terms of Service, may, at the sole discretion of FTS, be refurbished or comprised of refurbished materials.

5. Software License

“Software” means any software product licensed by FTS to User in connection with the Products, including without limitation, any of the following: web-based software; scripts/code loaded on Equipment; applications for use on mobile devices; and all other web-based services provided to User. Subject to the terms of the User Agreement and User’s payment of all Service Fees when due, FTS hereby grants to User a limited, non-transferable, non-exclusive right and license to access and use the Software solely in conjunction with User’s access and use of the Products, and solely for User’s internal business purposes. The Software is only licensed pursuant to the terms contained in these Terms of Service, not sold. The foregoing license shall not include any right to (and User may not): (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; (vi) circumvent or attempt to circumvent any technological measures (including the ability to disable all or part of the Product) designed to prevent the illegal usage of the Product or other violations of this Agreement or applicable law; or (vii) cause or permit any third party to do any of the foregoing. User receives no title or ownership rights to any Software. Except for the license granted in this Section, all right, title and interest in the Software shall remain the exclusive property of FTS or its licensors. User agrees and acknowledges 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”). User agrees to comply with and cause all Authorized Users (as defined herein) to comply with all FlowThru Terms located at https://www.ftsgps.com/legal/flow-thru-terms/. User shall cause each of its Authorized Users to comply with and agree to the FlowThru Terms. User is responsible and shall be liable for any breach by its Authorized Users of the FlowThru Terms. FTS may continuously improve the Service 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 User, or FTS may provide access to updates through its website, at its discretion. User hereby consents to such automatic installations and agrees to use only the updated version of any Software once it has been installed.

6. Term

The Term shall be as specified in the User Agreement. Except as set forth in the User Agreement, the Term shall automatically renew for successive twelve (12) month periods unless either Party provides the other Party with written notice of its intent not to renew no less than sixty (60) days prior to the expiration of the Term (or any renewal of the Term then in effect). In the event that User is in breach of any of the terms of the User Agreement, then FTS may terminate the User Agreement immediately upon notice to User.

7. Disclaimer

FTS MAKES, AND USER RECEIVES, 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.

8. 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, EVEN IF FTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL THE TOTAL LIABILITY OF FTS TO USER EXCEED THE AMOUNT OF SERVICE FEES PAID TO FTS BY USER DURING THE SIX MONTH PERIOD PRECEDING ANY CLAIM. THE LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, 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 USER’S USE OF THE PRODUCTS OR (B) ANY THIRD-PARTY CLAIMS AGAINST USER.

9. Confidential Information

  1. The term “FTS Confidential Information” means information relating to the User Agreement or the business of FTS, the Products or any of FTS’s subsidiaries or affiliates that (i) derives economic value, actual or potential, from not being generally known to or readily ascertainable by other persons, (ii) is the subject of efforts by FTS or its subsidiaries or affiliates that are reasonable under the circumstances to maintain the secrecy of the information, (iii) is identified by FTS or its subsidiaries or affiliates as “Confidential” and/or “Proprietary” or a “Trade Secret”; (iv) any know-how, plans, specifications or confidential information relating to FTS’s operations or any of the FTS Products; or (v) which otherwise ought reasonably to be considered confidential or proprietary. “FTS Confidential Information” shall not include any information that: (i) is now generally known or available on an unrestricted basis to the public or that becomes so known or available on an unrestricted basis without the fault of User; (ii) was previously possessed by User without restriction as to its disclosure or use prior to its receipt by User; or (iii) is acquired on an unrestricted basis from any third party, provided that User does not know or have reason to know that such information was acquired under an obligation of confidentiality.
  2. At all times from and after the Effective Date, User shall keep, and shall cause its directors, officers, employees, and representatives to keep, strictly confidential any and all FTS Confidential Information that is disclosed to any such entity or person or which is obtained during the course of performance of the User Agreement. Neither User, nor its directors, officers, employees nor representatives shall disclose any FTS Confidential Information to any third party. User shall take all necessary security precautions to protect FTS Confidential Information against unauthorized disclosure. User may disclose FTS Confidential Information only to its directors, officers, principals, employees, and representatives who have a need to know such information for the performance of the User Agreement. User shall not use at any time (whether during the Term or after its expiration or earlier termination) for its own benefit or purposes or for the benefit or purposes of any other person, firm, corporation, association or other business entity, any trade secrets, business development programs, or plans belonging to or relating to the affairs of FTS, including knowledge relating to FTS’s Users, clients, Products or employees of FTS.
  3. Notwithstanding the foregoing provisions, User may disclose each other’s respective Confidential Information to any third party only: (i) with FTS’s prior written consent, or (ii) by reason of legal compulsion in any legal proceedings or pursuant to law. If User is requested or required by any governmental authority or any adverse party in arbitration or litigation to disclose any FTS Confidential Information, it shall promptly notify FTS of such request or requirement, so that FTS may seek appropriate relief from all or part of such request or requirement. If, after FTS has had a reasonable opportunity to seek such relief and no such relief is obtained or a waiver is not given hereunder and User is, in the opinion of outside counsel reasonably satisfactory to FTS and addressed to FTS, compelled to disclose any FTS Confidential Information, User may disclose only such of the FTS Confidential Information to the person compelling disclosure as is, according to such opinion, required by law. User shall not be liable for disclosure of FTS Confidential Information pursuant to the preceding sentence unless such disclosure was caused by it in a manner not permitted by these Terms of Service. Both parties hereto shall exercise their best efforts to obtain reliable assurance that confidential treatment will be accorded the affected FTS Confidential Information.
  4. The terms of this Section 9 shall survive the expiration or earlier termination of the User Agreement.

10. Data Collection

User recognizes and acknowledges that FTS may collect data from Company’s operations received in the normal course of the provision of the services by FTS to User (“User Data”), aggregate such User Data with similar data received from the operations of its other Users, process and assemble such aggregated data and sell such data to third parties, all on a strictly anonymous basis. FTS may collect and use analytics, statistics or other data related to the User Data and User’s use of FTS products and services (i) in order to provide such products and services to User; (ii) for statistical reporting and use (provided that such data is not personally identifiable); or (iii) to monitor, analyze, develop upon, maintain, and improve the products and services; including by providing such data to third party services for the aforementioned purposes. The User hereby grants to FTS a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, display, and distribute User Data in connection with operating and providing the products and services and as otherwise set forth herein. The User hereby grants to FTS any and all consent and authority that may be required therefore. The User acknowledges that FTS’s right to store and use User Data pursuant to this paragraph shall survive termination of all agreements entered into between the User and FTS, indefinitely. The User hereby grants to FTS a non-exclusive, fully paid, world-wide and irrevocable license to use User Data and to copy, anonymize, aggregate, process and display User 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, Users, 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 Users, 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. The Aggregated Data that FTS uses in this manner is no longer associated with a device and as such is not individual vehicle data. FTS will not attempt to disaggregate the data or re-associate it with a device without User’s consent or unless legally compelled to do so or unless required for safety or troubleshooting purposes. FTS will be the owner of all right, title and interest in and to Aggregated Data and FTS Data. Without limiting the effect of the foregoing, FTS shall not disclose any unaggregated or anonymized User Data with any third party unless authorized by the User, required by applicable law, or required pursuant to a court order, subpoena, or other legal process. By executing this Agreement, User agrees to be bound by the terms of the FTS Data Protection Policy which may be amended, modified, and substituted from time to time (as amended, modified, or substituted from time to time (the “Data Processing Addendum” or “DPA”) located at https://www.ftsgps.com/legal/dpa/. User shall cause each of its Authorized Users to comply with and agree to the DPA. User is responsible and shall be liable for any breach by its Authorized Users of the DPA. User represents and warrants that User will obtain all rights and provide any disclosures to or obtain any consents, approvals, authorizations and/or agreements from any employee or third party that are necessary for FTS to collect, use, and share User in accordance with these Terms of Service , no User Data infringes upon or violates any individual or entity’s intellectual property rights, privacy, publicity or other proprietary rights, and User will adhere to all applicable state, federal and local laws and regulations in the conduct of its business in relation to FTS and its receipt and use of the Products. USER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS FTS AND, IF RELEVANT, ITS SUBPROCESSORS AGAINST ANY LIABILITIES, DAMAGES, DEMANDS, LOSSES, CLAIMS, COSTS, FEES (INCLUDING LEGAL FEES), AND EXPENSES IN CONNECTION WITH ANY THIRD-PARTY LEGAL OR REGULATORY PROCEEDING ARISING FROM ANY ACT OR OMISSION OF THE USER IN RELATION TO USER’S INSTRUCTIONS OR FROM THE USER’S BREACH OF THIS SECTION. THE TERMS OF THIS SECTION SHALL SURVIVE TERMINATION OR EXPIRATION OF THE USER AGREEMENT. FTS claims no ownership of any data generated by User or the equipment in any of User’s vehicle processed by the Services or any data User inputs into the Service, which may include information about the location of User, User’s vehicle, the vehicle in which it is installed (including the surrounding environment) or, potentially, the driver of such vehicle (collectively, “Fleet Data”). User instructs FTS to process Fleet Data to provide, maintain and improve the Services, to carry out FTS’s obligations under this Agreement, to carry out FTS’s obligations under applicable law, to allow a customer-authorized reseller access to the Fleet Data if such functionality is activated, and as otherwise directed by User.

11. Compliance; Security

User and all those who use the Product under the User Agreement (“Authorized Users”) shall comply with all applicable laws in connection with use of the Services. The Authorized Users are solely responsible for their failure to keep all user identifications and passwords (“Login Credentials”) secure. If the User believes the security of the Login Credentials has been compromised, or suspects unauthorized use, the User will promptly notify FTS. FTS will be entitled to treat all communications, instructions and transactions as authorized by User if the Login Credentials are used unless the User has notified FTS of compromise or unauthorized use of the Login Credentials. If FTS suspects, in its reasonable opinion, fraudulent or unauthorized activity on the Authorized User’s account, FTS reserves the right to terminate or suspend Authorized Users’ access to our website or any applicable services or both and will contact the Company to advise of this decision. User and each of its employees, agents, and/or contractors whom User authorizes to use the Products on its behalf (collectively, the “Authorized Users”) must comply with the FTS End User License Agreement which may be amended, modified, and substituted from time to time (as amended, modified, or substituted from time to time (the “EULA”) located at https://www.ftsgps.com/legal/eula/. User shall cause each of its Authorized Users to comply with and agree to the EULA. User is responsible and shall be liable for any breach by its Authorized Users of the EULA.

12. General

  1. Any dispute between the parties relating to or arising out of the User Agreement, whether or not a contract dispute, shall exclusively be determined by binding and non-appealable arbitration under the applicable rules of the American Arbitration Association (“AAA”). The arbitration shall be conducted by a single arbitrator chosen by the parties, or, if the parties cannot agree upon a single arbitrator within fifteen (15) days of a party submitting a proposal, then by a single arbitrator appointed by the New York, New York office of AAA. The arbitration shall be administered by the New York, New York office of AAA. The arbitrator shall be authorized to award or apportion attorneys’ fees and costs to the prevailing party of the arbitration. If the arbitrator’s decision is a compromise, the determination of which party or parties bear the costs and expenses incurred in connection with the arbitration proceeding shall be made by the arbitrator on the basis of the arbitrator’s assessment of the extent to which each party prevailed in its position. Notwithstanding the first sentence of this Section, FTS shall be entitled to seek court-ordered injunctive and other equitable relief upon any actual or threatened breach of the User Agreement, in addition to reimbursement of its attorneys’ fees and other costs incurred in obtaining the relief.
  2. The captions and article and section headings in these Terms of Service are for reference purposes only and shall not affect the meaning or interpretation of these Terms of Service. The term “including” as used herein means “including without limitation.” The terms “herein,” “hereof,” “hereunder,” and similar terms refer to the User Agreement as a whole, rather than any particular provision. Each Party acknowledges that it has had the opportunity to review the User Agreement with legal counsel. Any rule of construction that resolves ambiguities against the drafting party shall not apply in this interpretation of the User Agreement.
  3. Without limiting the effect of the foregoing, User acknowledges and agrees that it is bound by FTS’s Privacy Policy (the “Privacy Policy”) located at https://www.ftsgps.com/legal/apps-privacy-policy/, which Privacy Policy may be amended, modified, substituted, or replaced, from time to time. In such Privacy Policy, User shall be bound by all terms and obligations of “User” and “you” contained therein, as may be amended, modified, substituted, or replaced from time to time.
  4. Assignment. User may not assign the User Agreement, or any rights or obligations hereunder, in whole or in part, voluntarily, by operation of law or otherwise, including by merger, consolidation or acquisition of a controlling interest in a party, without the prior written consent of FTS. Any attempt by User to assign the User Agreement or any right or obligation hereunder in violation of this Section will be null and void and will constitute a material breach of the User Agreement. FTS may freely assign the User Agreement or its interest herein (or a portion thereof) without the consent of User.
  5. Modification of Agreement. FTS may modify these Terms of Service (and any addendums thereto) at any time, in our sole discretion.
  6. Waiver. No rights of a Party or breach by the other Party of any provision hereunder shall be waived by any act, omission, delay or knowledge of a Party, except by a written document executed by a duly authorized representative of the waiving Party. Any waiver on one occasion shall not constitute a waiver of any prior, concurrent, or subsequent occasions.
  7. Third Party Beneficiaries. The User Agreement is for the sole benefit of the parties hereto and nothing herein, express or implied, shall give, or be construed to give, any rights hereunder to any other person, including without limitation, any subcontractors, sub-vendors, or anyone designated as a reseller.
  8. Severability. If one or more provisions of the User Agreement are held to be unenforceable under applicable law, the parties hereto agree to renegotiate such provision in good faith. In the event that the parties hereto cannot reach a mutually agreeable and enforceable replacement, then such provision shall be excluded from the User Agreement, (ii) the balance of the User Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the User Agreement shall be enforceable in accordance with its terms. Any waiver by either Party of a breach of any provision of the User Agreement will not operate as or be construed to be a waiver of any other breach of that or any other provision of the User Agreement. Any modifications of the User Agreement must be in writing and signed by the duly authorized representative of User and FTS.
  9. Force Majeure. No default, delay or failure to perform on the part of FTS shall be considered a breach of the User Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of FTS, including without limitation, failure of a positioning system or wireless or power network or the Internet, strikes, lockouts or other labor disputes, riots, civil disturbances, embargoes, actions or inactions of governmental authorities, carriers or suppliers, epidemics, war, terrorism, severe weather, flood, fire, earthquakes, explosions, volcanic activities, acts of God or the public enemy, nuclear disasters, or default of a common carrier.
  10. Logos/Marketing. FTS shall have the right to use and display User’s name and any logos for marketing and promotional purposes in connection with FTS’s website and marketing material, subject to the terms of any trademark usage guidelines provided by User to FTS.
  11. Notices. Any notice under the User Agreement shall be in writing and shall be sent by prepaid registered or certified mail, return receipt requested, overnight delivery by an internationally recognized courier (such as FedEx, UPS or DHL), personal delivery or fax/email (provided that a confirming copy is also sent by overnight delivery), addressed to the other party at the following address:

    If to User: to the contact person and at the billing address as set forth in any User Agreement with User.

    If to FTS: Forward Thinking Systems LLC, Attn: Contracts Administration, 575 Jericho Turnpike, Suite 301, Jericho, NY 11753, Fax (516) 629-4998; Email: [email protected]

    with a copy to UB Greensfelder LLP, 200 W. Madison St., Suite 3300, Chicago, IL 60606, Attn: Upneet S. Teji

    Such notice shall be deemed to have been given upon personal delivery if delivered personally, the next business day if sent by overnight courier, on the fifth (5) business day if sent by registered or certified U.S. mail, or one (1) business day after receipt of successful transmission report if faxed.
  12. Entire Agreement. The User Agreement, including and together with these Terms of Service, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, statements, communications, representations and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of these Terms of Service and the terms and conditions of any User Agreement, the terms and conditions of the User Agreement shall supersede and control. These Terms of Service do not apply to the sale of goods under U.S. Government Contract Regulations, regardless of whether such provisions are on any User-supplied purchase order. In the case of a government contract, the applicable government regulations shall be only those which are mandatory for FTS under U.S. Government Federal Acquisition Streamline Act provisions as a subcontractor and which have been expressly agreed to by FTS in an attached rider. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any transaction between User and FTS.

Last modified July 31, 2024