Terms of Use Agreement

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

Effective Date: January 1st, 2017.

This Terms of Use Agreement sets forth the standards of use of the Foresight Intelligence Fleet View ("Service"). By using the Service you (the "Member", "Dealer", "Contractor") 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 without 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 "Deliverables" means the Services and tangible items that are specified in a Software Schedule issued in accordance with this Agreement 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 and that, if prepared without authorization of the owner of the preexisting work, would constitute copyright infringement or other infringement of intellectual property rights of the owner therein.

The term "Developed Software" shall mean the Object Code for the software programs developed by Foresight Intelligence under a Software Schedule, unless otherwise specified in such Software Schedule.

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 forms, as furnished by Foresight Intelligence pursuant to this Agreement.

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 "Services" means all services to be furnished to Member by Foresight Intelligence under any Software Schedule.

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 the Developed Software.

The term "Software Schedule" shall mean a complete description of the Developed Software and the Services to be performed in order to develop 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 as set forth in one or more Software Schedules.

Description and Acknowledgement of Service

Fleet View is providing Member with aggregation of machine information. Fleet View 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 Dealer that pays for the service on behalf of Contractor. By utilizing this service, Contractor agrees to share all information provided on Fleet View with the Dealer that is paying Foresight Intelligence for the service. Member grants to Foresight Intelligence the rights to use Member’s logos, trade names, trademarks, service marks, and domain names for Fleet View and the television plaque, if a television is also ordered in conjunction with this Service.

Ownership

Iron Intel is and shall remain the owner of the Developed Software and Software Intellectual Property Rights and any and all enhancements, upgrades, modifications, and/or Derivative Works of the Licensed Software that may be created from time to time, by any party.

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 Developed Software to satisfy its obligations under this Agreement and the Software Schedule.

(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 and the Software Schedule.

(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 Licensed Software, or attempt to generate or recover the Source Code for the Licensed 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.

No License. No license or right is hereby granted by implication, estoppel, or otherwise, which are not specifically granted to Member hereunder.

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.

Payments and Fees

Services. In consideration for providing Services hereunder, Member shall pay in U.S. dollars to Foresight Intelligence the fees pursuant to the terms set forth herein and all applicable Software Schedules. Foresight Intelligence shall invoice Member for the prices, charges, and reimbursable items payable to Foresight Intelligence as the conditions to payment are satisfied. Member shall pay the invoiced amount following receipt, unless a different time for payment is described in the Software Schedule. Invoices are to be addressed to the Project Manager identified in the applicable Software Schedule. Each invoice is to provide in reasonable detail the particular Services performed.

Expenses. Unless otherwise specified in a Software Schedule, Member shall reimburse Foresight Intelligence’s expenses in connection with performing Services thereunder, provided that such expenses are pre-approved by Member, including travel expenses (e.g., airfare, local transportation, lodging and meals) and miscellaneous expenses (e.g., reproduction and shipping costs of materials).

Late Payments. Any payments by Member which are not paid within thirty (30) days of their due date or receipt of an Foresight Intelligence invoice as applicable, shall bear interest, to the extent permitted by applicable law, at one and one half percent (1.5%) per month, calculated on the total number of days payment is delinquent.

Disclaimer of Warranties.

The site 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 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 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 Developed Software or sale of Member 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 Software Schedule, 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. The foregoing obligations shall survive the expiration 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, 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 IS INAPPLICABLE IN THOSE JURISDICTIONS.

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 guarantee continuous, uninterrupted or secure access to our website and operation of our website may be interfered with or adversely affected by numerous factors or circumstances outside of our 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

Our 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 said privacy policies of third-parties’ sites.

Disclaimer Regarding Accuracy of Vendor Information

Product specifications and other information have either been provided by the 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 Jurisdiction of the Courts of New Mexico

The laws of the State of New Mexico govern this Terms of Use, without giving effect to any choice of law rules. We make no representation that our Service or other services are appropriate, legal or available for use in other locations. Accordingly, if you choose to access our site you agree to do so subject to the internal laws of New Mexico.

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 © Foresight Intelligence, with all rights reserved, 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: Unless specified differently in the Software Schedule, Foresight Intelligence Fleet View requires a one year commitment from Dealer. After one year, Fleet View may be cancelled in writing 30 days prior to the next quarterly billing. Pricing subject to change with 30 days’ notice prior to the next billing. The Foresight Intelligence Fleet View Television and PC for Contractor office requires a three year commitment from Dealer. Transfer of ownership passes to Dealer FOB Shipping Point after payment has been received for the three years. The monitoring service for the Fleet View Television and PC for Contractor office will renew in three year terms unless cancelled in writing 30 days prior to renewal. Pricing is subject to change with 30 day written notice prior to 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 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. You agree that this Terms of Use Agreement and any other agreements referenced herein may be assigned by Foresight Intelligence, in our sole discretion, 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 us in relation to your 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.

Export Control

This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States of America which may be imposed upon or related to Foresight Intelligence or the Member from time to time by the Government. Furthermore, Member agrees that it will not export, directly or indirectly, any Developed Software or technical information acquired from Foresight Intelligence under this Agreement, or any products or processes using such technical information to any country for which the Government at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the Department of Commerce or other agency of the Government when required by an applicable statute or regulation.

Counterparts

This Agreement may be executed in counterparts, which together shall constitute one and the same Agreement.