Terms of Use Agreement

Read This Terms of Use Agreement Before Accessing Foresight Intelligence Fleet Intelligence Software.

Effective Date: December 6, 2017.

This Terms of Use Agreement sets forth the standards of use of the Foresight Intelligence Fleet Intelligence software ("Service"). By using the Service, you (the “Dealer” or “Contractor”, either of which may be referred to as the “Member”) agree to these terms and conditions. If you do not agree to the terms and conditions of this Agreement, you should immediately cease all usage of this Service. We reserve the right, at any time, to modify, alter, or update the terms and conditions of this Agreement with prior notice. Your continued use of the Service constitutes an acknowledgement and acceptance of the Agreement and its modifications. Except as provided in this paragraph, this Agreement may not be amended.

Definitions

The term “Communication Network” means the cellular data network(s) to which the Hardware is connected in order to be utilized, access to which is purchased from a wireless telecommunications service provider or re-seller. Communication Network data lines may have a minimum activation term required by the wireless telecommunications service provider. Member’s access to the Communication Network is subject to termination by the wireless telecommunications service provider for fraud or unauthorized use by Member.

The term “Data Network” means either the Communication Network or other third party cellular data network services purchased by Member directly from a third party vendor, to which the Hardware is connected in order to be utilized.

The term “Deliverables” means the Service, including the Developed Software and Documentation or any portions thereof.

The term “Derivative Work” means a work of authorship that is based upon or derived from one or more preexisting works, such as revision, modification, translation, abridgement, condensation, expansion or any other form in which such preexisting works may be recast, transformed or adapted, including any and all enhancements, upgrades and modifications thereto.

The term “Developed Software” shall mean the Object Code for the Service.

The term "Documentation" means all operator, technical and user manuals, training materials, guides, listings, specifications, flow charts, program descriptions and other materials for use in conjunction with the Developed Software, whether in hard copy or electronic form, as furnished by Foresight Intelligence pursuant to this Agreement.

The term “Hardware” means the GPS tracking and reporting device that directly interfaces with the Fleet Intelligence software.

The term “Installation” means the Hardware and its related accessories have been attached to the Member’s Vehicle, the Hardware has been activated on the Data Network (“Activation”) and the Hardware has been provisioned. (“Provisioning” is complete when the Hardware and the Foresight Intelligence host computer server(s) have been programmed, enabling the server(s) to identify, communicate with and provide automated system access and services to the Hardware.)

The term “Object Code” means computer programming code not readily perceivable by humans and suitable for machine execution without the intervening steps of interpretation or compilation.

The term “Platform” means the combination of hardware, databases, programming languages and operating systems on which the Developed Software operates, as set forth in the Specifications.

The term “Software Intellectual Property Rights” shall mean any and all intellectual property rights, including, without limitation, all patents, copyrights, trademarks, and trade secrets, covering or related to the Developed Software.

The term “Source Code” means computer programming code in human-readable form not suitable for machine execution (without the intervening steps of interpretation or compilation) and includes, without limitation, hypertext-based and scripting code and extensions thereof.

The term “Specifications” means the performance criteria and specifications, including the Platform and functional and operating specifications and requirements, of the Developed Software.

The term “Vehicle” means any powered or non-powered vehicle, and for the purposes hereof also includes any other Member equipment (including fixed assets), receiving installation of Hardware (whether powered or unpowered).

Description and Acknowledgement of Service

Fleet Intelligence software provides Member with aggregation of machine information. Fleet Intelligence software provides a live, mixed brand map of subscribed Contractor and rental machines, job sites, as well as Dealer branch locations. Any information posted and aggregated for Contractor is also accessible to the Contractor’s Dealer. By utilizing this Service, Contractor agrees to share all information provided on Fleet Intelligence software with the Contractor’s Dealer. Member grants to Foresight Intelligence the rights to use Member’s logos, trade names, trademarks, service marks, and domain names for Fleet Intelligence software and the television plaque, if a television is also ordered in conjunction with the Service.

Ownership

Foresight Intelligence is and shall remain the owner of the Developed Software and Software Intellectual Property Rights and any and all Derivative Works of the Developed Software that may be created from time to time, by any party.

Use of Client Content by Foresight Intelligence

“Content” consists of all data, software, and information that Member or its authorized users provides, authorizes access to, or inputs to the Service. Foresight Intelligence and its contractors, and subprocessors may access and use the Content for the purposes of providing, managing and enhancing the Service to Member.

Foresight Intelligence reserves the right to use Member’s Content and data that Member provides to the Service for Foresight Intelligence’s internal research, testing and development of improvements or enhancements to services or for the development of new services that provide a more tailored and meaningful experience for Members. Furthermore, Foresight Intelligence reserves the right to compile and analyze, in aggregated and anonymized format, summary information reflecting the use of Services by Member’s authorized users, and may prepare reports, studies, analysis and other work product resulting from this compilation and analysis. Foresight Intelligence retains ownership rights in and to the compiled data. In addition, Member agrees that Foresight Intelligence may upload Member’s machine Content only when anonymized to third parties for analysis in developing new enhancements and/or new Services.

Hardware and Network Service

Network Service. Member acknowledges that (i) access to, transmission speed and quality of the Data Network, Global Positioning System (“GPS”) network, and the Internet (the worldwide network of computer networks using standard protocols to facilitate data transmission) are dependent upon network infrastructures owned by, operated by, or under the control of third parties, and made available to Member subject to availability, limitations and conditions over which Foresight Intelligence assumes no control or responsibility; and (ii) connectivity, functionality and performance of these networks are dependent upon, and limited by a variety of factors including without limitation network technology, equipment, coverage and calling areas, cell site availability, inherent capacity and other system limitations, interference and failures, and network user congestion, environmental variables due to weather and atmospheric conditions, topography, locations of buildings and other structures, as well as periodic software and equipment updates and maintenance, and other internal factors determined solely by each network provider. GPS is a satellite based positioning system providing expansive coverage throughout the world. The GPS antenna must have a direct line of sight to the satellites. If said path is impaired (e.g. underground parking lots or the shadow of tall buildings), it can affect the ability of the services to recognize an accurate location. Member agrees that Foresight Intelligence is not responsible for any failure or degradation in performance of the Developed Software, Service, Hardware or related equipment, resulting delays, loss or damage including loss of data or compromised data security, due to the performance of any of these networks. In addition, certain services based on cellular technology may become obsolete in the futures as a result of changes in wireless technology or actions by telecom regulators with respect to cellular technology in mapping applications. In such event, Foresight Intelligence shall have no obligation to issue a refund or furnish substitute services. In addition, Foresight Intelligence assumes no responsibility for the accuracy or inaccuracy of any maps upon which the Service is based. The parties also recognize that unusual concentrations of usage may occur in certain locations. Foresight Intelligence shall incur no liability for its inability to provide adequate Services hereunder arising from or related to a lack of network capacity on the Hardware or related equipment which results from the aforesaid usage concentration, and nothing herein shall require Foresight Intelligence to expend any capital to insure capacity for Member’s use of the Service.

Member Acknowledgements. Member acknowledges that (i) Content collected by the Hardware while access to the Data Network is not available or when outside a reporting interval will not be transmitted or retrievable by Member until access is restored or reporting next occurs; (ii) Content collected by the Service will be stored pursuant to the then current Foresight Intelligence customer data retention, and thereafter may be archived or purged and destroyed in Foresight Intelligence’s sole discretion; (iii) Member assumes the entire risk in downloading or otherwise accessing any data, information, files or other materials obtained from the Foresight Intelligence’s business support network or any the Service; (iv) it is technically possible for third parties to monitor Data Network transmissions over the air and Foresight Intelligence is not responsible for the security of such transmissions; (v) the Service, which provides location or directional information, is to be used only as an aid in planning and Foresight Intelligence is not responsible for the accuracy thereof; and (vi) due to the factors described in this Section and elsewhere in this Agreement, Content transmission through Hardware is not instantaneous and delays in receipt of data are normal. Member further agrees that Foresight Intelligence shall not be liable for any resulting delays, loss or damage including loss of data or compromised data security. Member also acknowledges that the Hardware and Service have not been designed and are not effective as a security system or to provide security or emergency response for person (including remote medical monitoring) or property, including driver/passengers, Vehicle and its contents, whether alone or in conjunction with any other security or emergency system (e.g. a Vehicle security/alarm system), and any use of the Hardware or the features or functionality of the Service for such purpose is unauthorized and at Member’s sole risk and liability. Member acknowledges that the Hardware and Service are not intended to provide access to emergency personnel or services and that Member must contact law enforcement agencies or emergency services personnel directly through means other than the Hardware. Foresight Intelligence accepts no responsibility or liability for use of the Service in emergency situations and does not contact or communicate with law enforcement agencies on Member’s behalf.

OBD II Acknowledgements. If the Hardware is an OBD II plug-in device(s), the following applies: The OBD II Hardware device is based on the OBD II standard and plugs into the OBD II port on Member’s Vehicle. Member acknowledges and agrees that (i) the Vehicle must support the OBD II standard and the OBD II port must be free of any damage, properly powered, and fully functioning and communicating with all Vehicle systems as designed, and (ii) the data parameters available through the OBD II port or the ability to access them vary among Vehicle manufacturers and Vehicle models, and as a result not all data may be available for transmission to the OBD II Hardware device.

Disclosure of Relationship with Service Providers. Member understands that the Hardware Service furnished by Foresight Intelligence depend upon services provided by third parties (“Third Party Providers”) pursuant to agreements between such Third Party Providers and Foresight Intelligence and are subject to certain terms, conditions and limitations set out in such agreements. Member expressly understands and agree that it has no contractual relationship whatsoever with the Third Party Providers and that Member is not a third party beneficiary of any agreement between Foresight Intelligence and such Third Party Providers. Member understands that Foresight Intelligence and Third Party Providers cannot guaranty the security of data transmissions, and will not be liable for any lack of security relating to the use of the Service or the transmission of data. Member further acknowledge that the Third Party Providers disclaim all liability of any nature to Member, whether direct, indirect, incidental or consequential, arising out of use of the Hardware, and Member agrees that it shall have no claims against the Third Party Providers of any kind with respect thereto. In addition, Member expressly agrees that the agreements and terms in this section “Disclosure of Relationship with Service Providers” shall survive the termination of this Agreement.

Hardware Shipping and Title. Title to the Hardware and any related equipment, and risk of loss or damage, will pass to Member when Foresight Intelligence or manufacturer, as the case may be, delivers the Hardware or related equipment to the shipping carrier. Foresight Intelligence’s and manufacturer’s title and rights to all associated intellectual property rights therein remain with Foresight Intelligence or manufacturer and do not transfer to Member. Unless otherwise agreed in writing, Foresight Intelligence will deliver the Hardware and any related equipment freight prepaid by Foresight Intelligence and billable to Member. Foresight Intelligence utilizes standard ground shipping; any other available form of shipment requested by Member will be at Member’s sole cost.

Hardware Installation. Member shall be solely responsible for (i) Installation unless Installation is purchased from Foresight Intelligence and included in the Order; and (ii) integration of the Hardware with any other hardware and software applications not purchased from Foresight Intelligence, any such integration being at Member’s sole risk and cost. If Installation is purchased from Foresight Intelligence, it will be performed by Foresight Intelligence’s authorized contractor (“Installer”) subject to Member’s compliance with the installation process requirements set forth below. Member acknowledges that the Installation services purchased from Foresight Intelligence are performed by independent contractors and not Foresight Intelligence employees. Such contractors are not contracted by Foresight Intelligence to perform any additional services for Member during the course of Installation. Any additional services or equipment purchased from such contractors will be at the sole additional expense and risk of Member.

Foresight Intelligence Installation Process

(i) Standard Installation hours are between 7:00 a.m. and 6:00 p.m., Monday through Friday, Member’s local time. Member shall promptly schedule the Installation Date with Foresight Intelligence and the Installer no later than two (2) weeks prior to the Installation Date.

(ii) Hardware may be shipped to the Member’s designated location in advance of the Installation Date. Member will be required to receive and securely store the Hardware, and then make it available to the Installer at the scheduled location on the Installation Date.

(iii) All Vehicles must be placed in a single designated location and all keys provided to the Member’s on-site contact. Vehicles must be free of any mechanical, electrical or other problems (“Vehicle Faults”) that would prevent or materially hamper or delay performance of Installation. If any Vehicle Fault prevents Installation at the scheduled time and location, the Installer will not complete Installation.

(iv) Member shall be charged an additional fee per Vehicle (“No Show Fee”) for (i) each Vehicle that was scheduled for Installation but was not made available (including delivery of Vehicle keys) within fifteen (15) minutes of the scheduled Installation time at the scheduled location, unless the scheduled time or location was changed by Member with at least twenty-four (24) hours prior notice, and (ii) each Vehicle on which Installation could not be completed due to a Vehicle Fault.

(v) Member shall provide a reasonably safe, secure, and dry work environment with protection from inclement weather at the installation site, access to 110V AC power, and satisfactory cellular data network connectivity if Member is responsible for providing the Data Network. Member will not in any manner interfere with the Installer performing the Installation.

(vi) Member shall provide an on-site contact, who upon completion shall confirm by a signed writing that the Installation has been performed.

(vii) Member acknowledges that the Installer may modify or alter Member’s Vehicles, including without limitation drill holes, cut panels and body, or perform rewiring. Foresight Intelligence will not be responsible for subsequent restoration of Member’s Vehicles to their unmodified or unaltered condition. Legacy equipment to be uninstalled from Vehicles in order to enable Installation is not included in the Installation Fee(s) quoted to Member, and Member will be responsible for all such additional fees. Neither Foresight Intelligence nor the Installer will have any responsibility for subsequent handling and disposal of legacy equipment, which will be delivered to Member’s on-site contact during the scheduled Installation for disposal in accordance with any applicable legal requirements.

(viii) Member will additionally be responsible to pay for all travel related expenses including overnight accommodations, incurred by Installer in conjunction with Installation, in accordance with Installer’s or Foresight Intelligence’s travel and expense reimbursement policies.

Hardware Limited Warranty.

Subject to fulfillment by Member of its obligations under this Agreement, Foresight Intelligence warrants that for a period of one (1) year from shipment of Hardware (“Warranty Period”), it will repair or replace, at Foresight Intelligence’s sole discretion, Hardware (excluding ancillary accessories) having Defects (or the defective part thereof), provided that Member delivers proper notification to Foresight Intelligence as set forth below during the Warranty Period. The warranty obligations shall not apply to: (i) Hardware normally consumed in operation such as fuses, cables, antennae or mounting brackets; (ii) Hardware that Foresight Intelligence determines has evidence of a broken seal, which will invalidate the warranty, or (iii) Hardware that Foresight Intelligence determines does not have Defect(s), or is not working or is damaged or causes damage as a result of Member’s unauthorized or improper use, storage or other non-warranted condition including but not limited to: (a) improper operation, (b) any combination, operation or use with equipment, software, services, technologies or processes not furnished by Foresight Intelligence; (c) detrimental exposure to corrosive or other chemicals, electric shock or surge, excessive temperature, impact or vibration, water, weather conditions or other elements; (d) involvement in any collision, accident, explosion, fire or any man made or natural force of any kind including Act of God; and (e) tampering, alteration, improper Installation or repair by any party other than Foresight Intelligence or its authorized Installer(s). Repair or replacement under warranty of Hardware with Defect(s) will not extend the Warranty Period. Replacement Hardware or components may be new or reconditioned, and may consist of comparable Hardware or components manufactured by the same or other manufacturers, in the sole discretion of Foresight Intelligence. If Member prepays 3 years and commits to a 3 Year Term on the Hardware, the Warranty Period may extend up to three (3) years from shipment of Hardware as agreed in writing between Foresight and Member. For clarity, this hardware warranty does NOT include any network upgrades (such as 3G to 4G).

Notification and Return Material Authorization. Member will provide Foresight Intelligence with proper notification that Hardware has a Defect. Proper notification will be deemed to have occurred only after (i) Member has in good faith worked with Foresight Intelligence's customer support team by telephone or email to evaluate, troubleshoot and test any Hardware that appears to have a Defect; (ii) Foresight Intelligence’s customer support team determines that the Hardware appears to have a warranted Defect that cannot be repaired through telephone support or over the air programming, and (iii) Foresight Intelligence authorizes and assigns a Return Material Authorization Number (“RMA”) for the Hardware.

Warranty and Repair Process. Member at its own cost shall uninstall the Hardware from the Vehicle and return it, securely packaged, to a Foresight Intelligence-designated facility for repair with the assigned RMA clearly visible on each shipping form and carton. Inbound shipping will be paid by Member and outbound standard ground shipping for warranty service will be borne by Foresight Intelligence, with Member bearing all risk of loss during transit. Any other shipping requested by Member will be at Member’s sole cost. (Hardware containing a battery must be shipped by ground or as required by law.) Certain Hardware may qualify for Advance Replacement, or Advance Replacement may be the only warranty fulfillment method available for the Hardware. If Advance Replacement applies, Member must return the original Hardware with the Defect within fifteen (15) days of receipt of the replacement Hardware, failing which Member agrees to pay Foresight Intelligence the then current full retail price of the Replacement Hardware plus shipping, which shall be due upon invoice. Hardware returned to Foresight Intelligence for repair under warranty that is determined to not be covered by warranty will be charged to Member at a flat diagnostic/repair rate established by Foresight Intelligence, or if an Advance Replacement unit has shipped, at the lesser of the price of the Advance Replacement unit or the diagnostic/repair rate. Repair services for Hardware that is outside its warranty period may not be available and replacement may be required. If non-warranty repairs are requested and are available, the diagnostic/repair costs will be set forth in the RMA and Member’s delivery of the Hardware to Foresight Intelligence constitutes agreement to these charges. Member shall be responsible for the Installation and the payment of any Taxes or other charges or fees associated with each repaired or replaced Hardware unit. On-site troubleshooting services are not covered under warranty and are available to Member only upon request and will be subject to a separate agreement.

Covenants

Without limiting anything contained in this Agreement, Member represents, warrants and covenants for the term of this Agreement to Foresight Intelligence as follows:

(a) Member agrees to limit access to, and use of, the Hardware and Developed Software to only registered users.

(b) Member agrees not to engage in, participate in, or knowingly permit any modification, reproduction, distribution, or use of any of the Developed Software, nor creation of Derivative Works based on the Developed Software, except as expressly permitted by this Agreement.

(c) Member shall not license, sell, or otherwise distribute the Developed Software, or any Derivative Works thereof, to any other party.

(d) Neither Member nor any of its employees, contractors, consultants, or agents shall or shall attempt to reproduce, modify, decompile, disassemble, de-interpret, or otherwise reverse engineer the Developed Software, or attempt to generate or recover the Source Code for the Developed Software in any way whatsoever, nor shall it or they permit any other party to do so.

(e) Member shall comply with all applicable laws, rules, and regulations relating to its activities under this Agreement.

Software Intellectual Property Rights

(a) Foresight Intelligence, through its own attorneys and in its sole discretion, may file, prosecute, register, and maintain Software Intellectual Property Rights. Foresight Intelligence shall not have any liability whatsoever to Member with respect to the results of the filing, prosecution, registration, or maintenance of Software Intellectual Property Rights.

(b) Member shall promptly inform Foresight Intelligence as to all matters that come to its attention that may affect the preparation, filing, prosecution, issuance registration, or maintenance of the Software Intellectual Property Rights, and shall cooperate with Foresight Intelligence with respect thereto, including, without limitation, providing, as reasonably requested, the appropriate powers of attorney, declarations or other documents necessary to facilitate the filing, prosecution or maintenance of the Software Intellectual Property Rights.

Taxes

Member shall be responsible for any additional cost or expense arising from the sale, purchase, or resale of the Service or Developed Software, including, without limitation, all sales, excise, customs, goods and services tax (GST), harmonized sales tax (HST), value-added tax (VAT) and other taxes and duties, whether currently imposed or which may become applicable in the future, and Foresight Intelligence shall not be responsible for the withholding of taxes nor for the reporting of any taxes related thereto.

Disclaimer of Warranties.

Except as set forth elsewhere herein, the Hardware and the website through which member accesses the Service (“Website”) is provided by Foresight Intelligence on an “as is” and on an “as available” basis. To the fullest extent permitted by applicable law, Foresight Intelligence makes no representations or warranties of any kind, express or implied, regarding the Hardware or the use or the results of this web site in terms of its correctness, accuracy, reliability, or otherwise. Foresight Intelligence shall have no liability for any interruptions in the use of this Service. Foresight Intelligence disclaims all warranties with regard to the Hardware or the information provided, including the implied warranties of merchantability and fitness for a particular purpose, and non-infringement. Some jurisdictions do not allow the exclusion of implied warranties, therefore the above-referenced exclusion is inapplicable in those jurisdictions.

Without limiting the above paragraph, Foresight Intelligence makes no representations or warranties, express or implied, that

(a) the Developed Software is error free or that Member will be able to operate the Developed Software without problems or interruptions; or

(b) Member’s use of the Hardware or the Developed Software or sale of any of Member’s equipment is not subject to regulation by any local, state, or federal government or agency thereof; or

(c) Member will not require a license from any third party to that party's intellectual property in order to use or license the Developed Software; or

(d) any Software Intellectual Property Rights will issue, be granted, or register or that any such rights issued or registered thereon will be valid, or if any rights issue or register what the breadth or scope of the rights, as granted or registered, shall be; or

(e) the Developed Software will perform as anticipated by Foresight Intelligence or Member; or

(f) Member will not be required to select, procure, install, operate, and/or maintain certain computer hardware or software to run the Developed Software; or

(g) the Developed Software will work after any change is made after its delivery date to the Platform, including the operating characteristics of the computer hardware, the operating system, or non-Foresight Intelligence software used in conjunction with the Developed Software; or

(h) Member will not have to establish adequate operational backup provisions (e.g., alternate manual operation plans) in the event of a defect or malfunction that impedes the anticipated operation of the Developed Software.

Confidentiality

Each party shall use only in accordance with this Agreement and shall not disclose to any third party any confidential information received from the other party, without the prior written consent of the disclosing party. For purposes of this Agreement, the Specifications, Source Code, Object Code, Developed Software, and any information or Documentation of Foresight Intelligence other than Foresight Intelligence promotional literature shall be deemed to be confidential information of Foresight Intelligence. The foregoing obligations shall survive the expiration, non-renewal, or termination of this Agreement for a period of ten (10) years. These obligations shall not apply to confidential information that:

(a) is known by the receiving party at the time of its receipt, and not through a prior disclosure by the disclosing party, as documented by business records;

(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this Agreement by the receiving party;

(c) is subsequently disclosed to the receiving party by a third party who has the right to make such disclosure;

(d) is developed by the receiving party independently of confidential information or other information received from the disclosing party and such independent development can be properly demonstrated by the receiving party; or

(e) is required to be disclosed by law or court order, provided that written notice is promptly given to the other party in order to provide an opportunity to seek a protective order or other similar order with respect to such confidential information and thereafter discloses only the minimum information required to be disclosed in order to comply with the request, whether or not a protective order or other similar order is obtained by the other party.

Indemnification

Member agrees to indemnify and hold Foresight Intelligence and its parents, subsidiaries, affiliates, officers and employees harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of Member’s use of the Service, the violation of this Agreement, or infringement by Member, or other user of the Service using Member’s computer, of any intellectual property or any other right of any person or entity.

Limitation of Liability

FORESIGHT INTELLIGENCE SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR FORESIGHT INTELLIGENCE SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THIS SERVICE OR THE INFORMATION CONTAINED IN IT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF FORESIGHT INTELLIGENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS ARE INAPPLICABLE IN THOSE JURISDICTIONS.

MEMBER EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS TELECOMMUNICATIONS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT MEMBER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN FORESIGHT INTELLIGENCE AND THE UNDERLYING SERVICE PROVIDER. IN ADDITION, MEMBER ACKNOWLEDGES AND AGREES THAT THE UNDERLYING WIRELESS TELECOMMUNICATIONS SERVICE PROVIDER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO MEMBER AND MEMBER HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR.

Modifications and Interruption to Service

Foresight Intelligence reserves the right to modify or discontinue the Service with or without notice to the Member. Foresight Intelligence shall not be liable to Member or any third party should Foresight Intelligence exercise its right to modify or discontinue the Service. Member acknowledges and accepts that Foresight Intelligence does not warrant, represent, or guarantee continuous, uninterrupted or secure access to the Website and operation of the Website may be interfered with or adversely affected by numerous factors or circumstances outside of its control.

Force Majeure

Failure of any party to perform its obligations under this Agreement (except the obligation to make payments when properly due) shall not subject such party to any liability or place it in breach of any term or condition of this Agreement if such failure is due to any cause beyond the reasonable control of such nonperforming party, including without limitation, acts of God, fire, explosion, flood, drought, war, riot, sabotage, embargo, computer virus, strikes or other labor trouble, interruption of or delay in the national transportation system, a national health emergency or compliance with any order or regulation of any government entity; provided however, that the party affected shall promptly notify the other party of the condition constituting force majeure and shall use reasonable efforts to eliminate, cure and overcome any such causes and to resume performance of its obligations with all possible speed. If a condition constituting force majeure as defined herein exists for more than ninety (90) consecutive days, the parties shall meet to negotiate a mutually satisfactory solution, if practicable.

Third-Party Sites

The Service may include links to other sites on the Internet that are owned and operated by online merchants and other third parties. You acknowledge that we are not responsible for the availability of, or the content located on or through, any third-party site. You should contact the site administrator or webmaster for those third-party sites if you have any concerns regarding such links or the content located on such sites. Your use of those third-party sites is subject to the terms of use and privacy policies of each site, and we are not responsible therein. We encourage all Members to review the privacy policies of third-parties’ sites.

Disclaimer Regarding Accuracy of Vendor Information

Product specifications and other information have either been provided by third-party vendors (“Vendors”) or collected from publicly available sources. While Foresight Intelligence makes every effort to ensure that the information on this Service is accurate, we can make no representations or warranties as to the accuracy or reliability of any information provided on this Service.

Foresight Intelligence makes no warranties or representations whatsoever with regard to any product provided or offered by any Vendor, and you acknowledge that any reliance on representations and warranties provided by any Vendor shall be at your own risk.

Governing Law

The laws of the State of Arizona govern this Agreement, without giving effect to any choice of law rules. Foresight Intelligence make no representation that the Service or other services are appropriate, legal or available for use in other locations. Accordingly, if you choose to access the Website you agree to do so subject to the laws of the State of Arizona.

Compliance with Laws

Member assumes all knowledge of applicable law and is responsible for compliance with any such laws. Member may not use the Service in any way that violates applicable state, federal, or international laws, regulations or other government requirements. Member further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation.

Copyright and Trademark Information

All content included or available on this site, including site design, text, graphics, interfaces, and the selection and arrangements thereof is owned by and the copyright of Foresight Intelligence, with all rights reserved, and/or is the property of Foresight Intelligence and/or third parties protected by intellectual property rights. You grant to Foresight Intelligence a perpetual, paid-up, royalty free license to use, copy, distribute and prepare Derivative Works of any information posted by you on the Service. Any use of materials by Member on or obtained from the Service, including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Foresight Intelligence is strictly prohibited. Members agree that they will not use any robot, spider, or other automatic device, or manual process to monitor or copy from the Service or the content contained therein without prior written permission of an authorized officer of Foresight Intelligence. Foresight Intelligence is providing this site for Member’s use only and is licensed to the Member alone. In no event, shall Member disclose or authorize any third party or company to access the system without prior written authorization of an authorized officer of Foresight Intelligence.

Foresight Intelligence® is a proprietary mark of Foresight Intelligence. Foresight Intelligence’s trademarks may not be used in connection with any product or service that is not provided by Foresight Intelligence, in any manner that is likely to cause confusion among Members, or in any manner that disparages or discredits Foresight Intelligence.

All other trademarks displayed on Foresight Intelligence’s Service are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of those Vendors. In addition, such use of trademarks or links to the web sites of Vendors is not intended to imply, directly or indirectly, that those Vendors endorse or have any affiliation with Foresight Intelligence.

Termination

Termination without Cause. Foresight Intelligence Fleet Intelligence software requires a three year commitment from Dealer for each site unless otherwise mutually agreed to in writing between Dealer and Foresight Intelligence. After three years, Fleet intelligence may be cancelled in writing 30 days prior to the next renewal.

Termination with Cause. This Agreement may be terminated upon written notice by either party at any time during the term of this Agreement:

(a) if the other party is in breach of its material obligations hereunder and has not cured such breach within thirty (30) days after written notice of the breach with reasonable detail of the particulars of the alleged breach; or

(b) upon the filing or institution of bankruptcy, reorganization, liquidation or receivership proceedings, or upon an assignment of a substantial portion of the assets for the benefit of creditors by the other party, or in the event a receiver or custodian is appointed for such party’s business or if a substantial portion of such party’s business is subject to attachment or similar process; provided, however, in the case of any involuntary bankruptcy proceeding such right to terminate shall only become effective if the party consents to the involuntary bankruptcy or such proceeding is not dismissed within sixty (60) days after the filing thereof.

Effect of Termination. Expiration or termination of the Agreement shall not relieve the parties of any obligation accruing prior to such expiration or termination, and the provisions of Disclaimer of Warranties, Indemnification, Confidentiality, Assignment, Governing Law, Waiver, Independent Relationship, Other Terms, Ownership, Covenants, Software Intellectual Property Rights, and Effect of Termination shall survive the expiration or termination of the Agreement. Any expiration or early termination of this Agreement shall be without prejudice to the rights of either party against the other accrued or accruing under this Agreement prior to termination or expiration. Upon termination or expiration of this Agreement, all payments due to Foresight Intelligence under this Agreement and remaining balance of contract term amounts shall become immediately due and payable.

Assignment

Neither this Agreement nor any or all of the rights and obligations of Member shall be assigned, delegated, sold, transferred, or otherwise disposed of, by operation of law or otherwise, to any third party, without the prior written consent of Foresight Intelligence, and any attempted assignment, delegation, sale, transfer, sublicense or other disposition, by operation of law or otherwise, of this Agreement or of any rights or obligations hereunder contrary to this Section shall be a material breach of this Agreement by the attempting party, and shall be void and without force or effect.

Waiver

The waiver of any breach of this Agreement or the failure or delay of either party to enforce any right under this Agreement shall not constitute, or be construed as, a waiver of any other breach of this Agreement, whether of similar nature or otherwise, nor operate to bar the enforcement of any right under this Agreement.

Independent Relationship

Nothing herein contained shall be deemed to create an employment, agency, joint venture or partnership relationship between the parties hereto or any of their agents or employees, or any other legal arrangement that would impose liability upon one party for the act or failure to act of the other party. Neither party shall have any power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other party, or to bind the other party in any respect whatsoever.

Reservation of Rights

Foresight Intelligence retains the right, at our sole discretion, to terminate any accounts involved with botnets and related activities. If any hostnames are used as command and control points for botnets, Foresight Intelligence reserves the right to direct the involved hostnames to a honeypot, loopback address, logging facility, or any other destination at our discretion.

Other Terms

If any provision of this Terms of Use Agreement shall be unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provision) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent. Member agrees that this Terms of Use Agreement and any other agreements referenced herein may be assigned by Foresight Intelligence, in the sole discretion of Foresight Intelligence, to a third party in the event of a merger or acquisition. This Terms of Use Agreement shall apply in addition to, and shall not be superseded by, any other written agreement between Member and Foresight Intelligence in relation to Member’s participation as a Member.

Alternative Dispute Resolution

Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, may be settled by the parties through mediation and/or arbitration upon terms and at a location mutually agreed upon.