These Terms of Service ("Terms") are entered into between Fleetsmith, Inc. ("Fleetsmith") and the organization for which you are accepting these Terms ("Customer") as of the Effective Date. These Terms set forth the terms and conditions under which Customer may use the Services. By accepting these Terms, including by executing an Order Form that references these Terms, using the Services, or clicking a box or button indicating your acceptance of these Terms, you agree to these Terms as a Customer. You represent that you have the authority to bind Customer to these Terms. If you do not agree with these Terms or you do not have such authority, you must not accept these Terms or use the Services.
1.1. Provision of Services
Customer and its Administrators and End Users may access and use the Services and Software in accordance with these Terms and the Documentation. Customer and its Administrators may use the Services to Manage User Devices and Third-Party Products.
Fleetsmith has certified its compliance with the EU-U.S. Privacy Shield Privacy Shield Framework. Customer agrees that Fleetsmith and its contractors may transfer, store, and process Customer Data in locations other than Customer’s country.
Fleetsmith may, at its discretion, change or update the Services from time to time. Fleetsmith will notify Customer in advance of changes to the Services that materially reduce their functionality.
Some Services allow or require Customer to download Software for User Devices, which may be updated automatically. Fleetsmith grants Customer and End Users a limited, non-exclusive right during the Term to use such Software only to access and use the Services.
1.5. Implementation Services
The parties may enter into a SOW describing configuration, training, or other implementation services to be provided by Fleetsmith or its contractors to Customer. Fleetsmith will be responsible for the provision of services specified in the SOW.
Fleetsmith will provide standard support for the Services to Customer’s Administrators at no additional charge.
2. Customer Use of Services
Except as set forth in the Order Form, Services are made available as subscriptions and additional subscriptions may be added during the Subscription Term at the same price applicable to that subscription type, prorated for the remainder of the then-current Subscription Term.
2.2. Customer Administration
Customer is responsible for designating Administrators for its Services account, maintaining updated Administrator contact information, and managing access to Administrator accounts.
2.3. Customer Responsibilities
Customer is responsible for any use of the Services through its account. Customer is responsible for how Customer Manages User Devices and Third-Party Products using the Services, including communicating with End Users about effects of device management (e.g., enforced OS upgrades, automated patching, or remote wipe) or steps not managed by the Services (e.g., device backup). Customer will maintain the confidentiality of account credentials used by Administrators and End Users to access the Services and Software. Customer will prevent unauthorized use of the Services and promptly notify Fleetsmith of any unauthorized use. Customer may not permit sharing of accounts and passwords.
Customer may only use the Services in accordance with these Terms, the Documentation, and the Acceptable Use Policy. Customer will obtain any consents and comply with any laws necessary to allow the operation of the Services and to permit Fleetsmith to process, store, and transfer Customer Data. Customer will ensure that no person under the age of 13 is allowed to become a user of a User Device. Customer will not submit to the Services any Restricted Information.
2.5. Usage Limits
Use of the Services may be subject to usage limits set forth in Customer’s Order Form or the Documentation.
Customer will not (and will not allow any Administrator, End User, or third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services or Software, (b) modify or create derivative works based on the Services or Software, (c) sell, resell, license, copy, rent, lease, distribute, time-share the Services or Software or otherwise use the Services or Software for the benefit of a third party, (d) remove or alter proprietary notices from the Service or Software, or (e) use the Service or Software to create any other product. But, Customer may perform activities in this Section 2.6(a) for the purpose of engaging in security research in compliance with Section 2.7.
2.7. Security Research
Fleetsmith encourages security research, but requires Customers engaging in security research regarding the Services to (a) comply with these Terms, (b) not to perform research for the purpose of creating competitive or similar products; (c) ensure such security research does not interfere with the Services or otherwise impact the reliability, availability, or security of the Services for other users, (d) comply with or follow any other instructions set forth at https://www.fleetsmith.com/security, and (e) follow computer security industry best practices for "responsible disclosure."
2.8. Third-Party Services & Third-Party Products
If Customer uses any Third-Party Services with the Services or Manages any Third-Party Products using the Services: (a) Fleetsmith will not be responsible for any act or omission of the third-party, including the third-party's access to or use of Customer Data or execution of instructions to Manage User Devices or Third-Party Products; and (b) Fleetsmith does not warrant or support any Third-Party Service or Third-Party Product. For example, if Customer uses Fleetsmith to configure a VPN client, Fleetsmith is not responsible for the security of your VPN service provider. Customer is responsible for complying with licenses and paying fees for Third-Party Services and Third-Party Products.
Fleetsmith may suspend Customer’s right to use the Services in its sole discretion or if (a) Customer, Administrator’s, or End User’s use of the Services poses a security risk to the Services, may violate the Acceptable Use Policy, or may adversely affect the Services, Fleetsmith’s systems and infrastructure, or a third party, (b) Customer’s, Administrator’s or End User’s use of the Services could subject Fleetsmith to liability, or (c) Customer is in breach of these Terms. Fleetsmith will use commercially reasonable efforts to provide prompt notice of a suspension.
3. Intellectual Property Rights
3.1. Fleetsmith License
Except for the rights granted in Section 1 (Services), Fleetsmith and its licensors own and reserve all right, title, and interest in and to the Fleetsmith Technology.
3.2. Customer License
Except for the rights granted in this Section, Customer owns and reserves all right, title, and interest in and to the Customer Data. Customer grants Fleetsmith and its contractors a worldwide, non-exclusive right to use, copy, create derivative works based on, and display its Customer Data as reasonably necessary for Fleetsmith to provide, maintain, and improve the Services. Customer also grants Fleetsmith and its contractors any other limited rights necessary for Fleetsmith to provide, maintain, and improve the Services. Fleetsmith may display Customer’s logo within designated areas of the Customer’s Services account.
Customer agrees that with respect to any Suggestions, Fleetsmith may, in its discretion and for any purpose, (a) use, modify, and incorporate into Fleetsmith’s products and services and (b) license or sublicense the Suggestions without obligation to Customer.
3.4. Customer List
Fleetsmith may use Customer’s name, logo, and marks to identify Customer as a Fleetsmith customer on Fleetsmith’s website and in other marketing materials. Customer also agrees that Fleetsmith may verbally reference Customer as a customer of the Services.
Fleetsmith may use Fleetsmith Data (i) to provide, maintain, and improve the Services and develop new features and services and (ii) create and distribute reports and materials about the Services. Fleetsmith will not identify Customer as a source of information for any report or material described in this Section without Customer’s permission.
4. Fees & Payment
Customer will pay Fleetsmith the fees for the Services set forth in the Order Form, invoice, or Fleetsmith billing webpage within Customer’s account, as applicable. All payments are due in U.S. dollars unless otherwise indicated by Fleetsmith. Customer is responsible for providing complete and accurate billing and contact information to Fleetsmith and updating Fleetsmith of any changes. All fees paid are non-refundable and not subject to set-off.
4.2. Invoicing & Payment
Unless otherwise set forth in the Order Form, invoice, Fleetsmith billing webpage, or any SOW, all fees will be invoiced in advance. All invoices issued under these Terms are due and payable according to the payment terms in the Order Form, if applicable, or within 30 days from invoice send date. If Customer provides Fleetsmith with credit card information for payment, Customer acknowledges that an invoice may not be sent and Customer authorizes Fleetsmith to charge the credit card for the Services listed in the Order Form or Fleetsmith billing webpage for the Subscription Term. If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to these Terms and are void.
4.3. Late Payments
Past due amounts are subject to a finance charge of 1.5% per month (or the highest rate permitted by law) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Fleetsmith in collecting past due amounts. If Customer’s fees are past due, Fleetsmith may suspend the Services automatically and provide notice of termination for material breach.
Customer is responsible for all taxes, except those directly relating to Fleetsmith’s net income, gross receipts, or capital stock. Fleetsmith will invoice Customer for sales tax when required to do so and Customer will pay the tax unless Customer provides Fleetsmith with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5. Future Functionality
Customer agrees that it has not relied on the availability of any future functionality of the Service or any other future product or service in executing these Terms or any Order Form. Customer acknowledges that information provided by Fleetsmith regarding future functionality should not be relied upon to make a purchase decision.
5. Term & Termination
The Terms will remain in effect for the Term.
5.2. Subscription Terms
Subscriptions will automatically renew for the shorter of (a) additional 1 year subscriptions or (b) the period set forth in an Order Form or other order confirmation (e.g., monthly), unless either party gives the other notice of non-renewal at least 30 days before the end of the Subscription Term.
Either party may terminate these Terms if (a) the other party is in material breach of the Terms and fails to cure that breach within thirty days after receipt of written notice, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings. Fleetsmith may also terminate the Terms if it has the right to suspend the Services under Section 2.9 or in order to comply with law or regulation.
5.4. Effect of Termination
If these Terms expire or are terminated, then (a) the rights granted by one party to the other will cease immediately except as otherwise set forth in this Section, and (b) the following Sections will survive: 3 (Intellectual Property Rights), 4 (Fees & Payment), 5.4 (Effect of Termination), 6 (Confidentiality), 7 (Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10 (Disputes), 11 (General Provisions), 12 (Definitions).
6.1. Definition of Confidential Information
"Confidential Information" means any business or technical information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party") under these Terms that is marked as confidential or would normally be considered confidential to a reasonable person under the circumstances. These Terms, Order Forms, and the Fleetsmith Technology will be Confidential Information of Fleetsmith. Customer Data will be Confidential Information of Customer. Confidential Information will not include any information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party prior to receipt, (c) is obtained by the Receiving Party from a third party not under an obligation of confidentiality, and (d) is independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
The Receiving Party will use reasonable care to (a) not use the Disclosing Party’s Confidential Information for any purpose outside of the scope of these Terms and (b) except as authorized or directed by the Customer to provide Confidential Information to a Third-Party Service or Third-Party Product, limit access to the Disclosing Party’s Confidential Information to its and its Affiliate’s employees, contractors, and advisors who need access to the Confidential Information for any purpose not outside of the scope of these Terms and who have agreed to confidentiality provisions with the Receiving Party containing similar protections to the protections for Confidential Information in these Terms. Fleetsmith may disclose Customer’s relationship with Fleetsmith to third-parties for whom Fleetsmith manages such third-parties’ software for Customer.
6.3. Compelled Disclosure
Each party may disclose the other party’s Confidential Information when required by law or regulation so long as the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Disclosing Party’s cost to contest or limit the disclosure. If the Receiving Party is compelled to disclose the Confidential Information, the Receiving Party will disclose the minimum extent of Confidential Information necessary.
TO THE FULLEST EXTENT PERMITTED BY LAW, FLEETSMITH AND ITS AFFILIATES, LICENSORS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATORY OR OTHERWISE REGARDING THE SERVICES, OUTPUT OF THE SERVICES, AND SOFTWARE, AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR (II) THAT THE SERVICES, OUTPUT OF THE SERVICES, AND SOFTWARE ARE ACCURATE, COMPLETE, OR RELIABLE. THE SERVICES, OUTPUT OF THE SERVICES, AND SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE." FLEETSMITH WILL NOT BE LIABLE FOR ANY THIRD-PARTY SERVICE, THIRD-PARTY PRODUCT, OR FOR ANY RESTRICTED INFORMATION RECEIVED IN BREACH OF THIS AGREEMENT.
8.1. By Customer
Customer will defend Fleetsmith and its Affiliates from and against all third-party claims, lawsuits, and demands regarding (a) Customer’s use of the Services or Software in violation of this Agreement, (b) Customer Data, (c) Third-Party Services, and (d) Third-Party Products, and will indemnify Fleetsmith and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set forth in Section 8.3.
8.2. By Fleetsmith
Fleetsmith will defend Customer from and against all third-party claims, lawsuits, and demands regarding an allegation that Fleetsmith’s technology used to provide the Services or Software infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set forth in Section 8.3. In no event will Fleetsmith have obligations or liability under this Section arising from: (a) use of the Services or Software in a modified form or in combination with materials not furnished by Fleetsmith, and (b) any content, information, or data provided by Customer, User Devices, or other third parties. If Fleetsmith believes the Services or Software infringe or may be alleged to infringe a third party’s intellectual property rights, Fleetsmith may, at its election, (i) procure the rights to use the portion of the Services or Software alleged to be infringing, (ii) replace the alleged infringing portion of the Services or Software with a non-infringing alternative, or (iii) terminate the allegedly infringing portion of the Services or Software or this Agreement.
The party seeking indemnification will promptly notify the other party of the claim and cooperate with the party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed, and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNIFIES ARE A PARTY’S ONLY REMEDY UNDER THESE TERMS FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9. Limitation of Liability
9.1. Limitation on Indirect Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, FLEETSMITH AND ITS AFFILIATES, LICENSORS AND DISTRIBUTORS WILL NOT BE LIABLE UNDER THESE TERMS TO CUSTOMER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES (IN EACH CASE WHETHER DIRECT OR INDIRECT), REGARDLESS OF THE LEGAL THEORY, REGARDLESS OF WHETHER FLEETSMITH HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.2. Liability Cap
TO THE FULLEST EXTENT PERMITTED BY LAW, FLEETSMITH’S AND ITS AFFILIATES’, LICENSORS’, AND DISTRIBUTORS’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS WILL NOT EXCEED THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR CUSTOMER’S USE OF THE SERVICES IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
10.1. Informal Resolution
Fleetsmith wants to address Customer’s concerns and requests that Customer bring issues that may lead to a dispute to our attention immediately. Before filing a claim, Fleetsmith and Customer agree to try to resolve the dispute by providing notice to the other party and having the appropriate executives attempt to resolve the dispute through communication and discussion. After 15 days, either party may bring a formal proceeding.
10.2. Arbitration Terms
Fleetsmith and Customer agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as further set forth below. Any dispute will be administered by the American Arbitration Association under its Commercial Arbitration Rules by a single arbitrator. The arbitration will take place in San Francisco, California in the English language. Either party may bring a lawsuit in court for claims for injunctive relief to stop unauthorized use or abuse of the Services or claims of intellectual property infringement without first engaging in the informal resolution process described above. Fleetsmith and Customer consent to the exclusive jurisdiction and venue of the federal or state courts of San Francisco, California. Customer may only resolve disputes with Fleetsmith on an individual basis and will not bring a claim in a class, consolidated, or representative action.
11. General Provisions
11.1. Terms Modification
Fleetsmith may modify these Terms periodically. If an update will affect Customer’s use of the Services, Fleetsmith will notify Customer prior to the update’s effective date (except for changes due to legal or regulatory reasons which may be effective immediately). Otherwise, updates will be effective as of the date posted on this website. By continuing to use the Services or executing additional Order Forms after the changes become effective, Customer agrees to be bound by the modified Terms. If Customer does not agree to the modified Terms for the Services, Customer may terminate the Services within 30 days of receiving notice of the change.
11.2. Entire Terms
All attachments to the Terms, SOWs, and Order Forms executed by the parties are hereby incorporated into the Terms by reference. These Terms constitutes the entire agreement between Customer and Fleetsmith with respect to the subject matter of these Terms and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements. Except as otherwise set forth in these Terms, no modification, amendment, or waiver of any provision of these Terms will be effective unless set forth in writing and signed by the parties. If there is a conflict between the documents that make up these Terms, the documents will control in the following order: Order Form, the SOW, the Terms, and the Documentation.
11.3. Governing Law
These Terms will be governed by California law except for its conflicts of laws principles.
Notices must be sent by first class mail or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable Administrator account email address and are deemed given when sent. Notices to Fleetsmith must be sent to Fleetsmith, Inc., Attn: Legal Department, 548 Market Street #43552, San Francisco, CA 94104, with a copy to [email protected].
Customer may not assign or transfer these Terms or any rights or obligations under these Terms, whether by operation of law or otherwise, without Fleetsmith’s consent. Fleetsmith may assign these Terms in their entirety, without notice, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the restrictions in this Section, these Terms will be binding upon and inure to the benefit of the parties and their respective successors and assigns. Any other attempt to transfer or assign is void.
11.6. Relationship of the Parties
The parties are independent contractors. These Terms do not create a partnership, joint venture, or agency relationship between the parties.
11.7. Third-Party Beneficiaries
There are no third-party beneficiaries under these Terms.
Any ambiguity in the Terms will be interpreted equitably without regard to which party drafted the Terms. "Including" and "include" will be construed to mean "including without limitation."
11.9. Force Majeure
Fleetsmith will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, labor disputes, governmental action, utilities failures, and Internet disturbance) that was beyond its reasonable control.
No failure or delay by either party in exercising a right under these Terms will constitute a waiver of that right. A waiver of a default is not a waiver of any subsequent default.
If a court of competent jurisdiction finds any term of these Terms to be unenforceable, the unenforceable term will be modified to reflect the parties’ intention and only to the extent necessary to make the term enforceable. The remaining provisions of the Terms will remain in effect.
These Terms and any Order Form may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.
11.13. Export Compliance
The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer’s use of the Services. Customer will not permit User Devices to access the Services from a U.S. embargoed country.
12.1. "Acceptable Use Policy" means the acceptable use policy for the Services available at https://www.fleetsmith.com/acceptableuse or otherwise provided by Fleetsmith.12.2. "Administrator" means a Customer-designated user who administers the Services account and has access to permissions and other sensitive settings.12.3. "Affiliate" means any entity that controls, is controlled by, or is under common control with a party, where "control" means the ability to direct the management and policies of an entity.12.4. "Customer Data" means data and information submitted to the Services by Customer, including data and information submitted to the Services from Third-Party Services authorized by Customer.12.5. "Documentation" means any Fleetsmith-provided written documentation and policies.12.6. "Effective Date" means the earlier of the date Customer first accepted these Terms or the subscription start date set forth on Customer’s first Order Form.12.7. "End User" means a user of a User Device.12.8. "Fleetsmith Data" means usage data, statistics, aggregate data, and de-identified data derived from Customer Data so that such data does not identify a person.12.9. "Fleetsmith Technology" means the Services, Software, Documentation, Aggregate Data, and Fleetsmith’s trademarks, logos, and other brand features.12.10. "Initial Subscription Term" means the term for the applicable Services either (a) starting on the Effective Date and continuing for 1 year or (b) starting on the subscription start date set forth on Customer’s first Order Form and continuing for the period set forth in the Order Form.12.11. "Manage" means to access, manage, install on, uninstall from, update, restrict, configure, monitor, lock, enforce compliance on, and remotely wipe.12.12. "Order Form" means the ordering document or page for the Services.12.13. "Restricted Information" means (a) sensitive personal information such as social security numbers, passport numbers, driver’s license numbers and other government identification numbers, (b) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder) or similar information under comparable laws or regulations, or (c) Nonpublic Personal Information (as defined in the Gramm-Leach-Bliley Act and regulations thereunder) or similar information under comparable laws or regulations.12.14. "Services" means the products and services ordered by Customer under an Order Form or otherwise provided by Fleetsmith and used by Customer under these Terms.12.15. "Software" means the downloadable software agent made available as part of the Services.12.16. "SOW" means statement of work.12.17. "Subscription Term" means the Initial Subscription Term or any renewal terms for the Services.12.18. "Suggestions" means feedback, comments, ideas, reviews, information, suggestions, or other materials that Customer or users of User Devices provide to Fleetsmith or its contractors.12.19. "Term" means the term for these Terms, which will begin on the Effective Date and continue until the earlier of (a) the last Subscription Term has expired or (b) until these Terms are terminated.12.20. "Third-Party Products" means software applications that the Services can be used to Manage (e.g., Slack, Puppet).12.21. "Third-Party Services" means products, services, or applications offered by a third party that interoperate through an API with the Services (e.g., G Suite).12.22. "User Device(s)" means user device(s) managed through Customer’s Services account. User Device(s) may include user device(s) of Customer’s and its Affiliate’s employees, agents, and consultants.