Terms of Service

Last updated: 03-22-24

THESE TERMS OF SERVICE ARE THE LEGALLY BINDING CONTRACT BETWEEN YOU AND RARESTEP, INC., AND GOVERN YOUR ACCESS TO ANY SERVICES WE PROVIDE TO YOU. PLEASE READ THESES TERMS CAREFULLY BEFORE SIGNING UP FOR OR USING THE SERVICES. IN THE EVENT YOU PROVIDE A PURCHASE ORDER, SUCH PURCHASE ORDER WILL BE CONSIDERED SOLELY FOR INVOICING PURPOSES AND ANY TERMS CONTAINED THEREIN SHALL BE VOID NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN SUCH PURCHASE ORDER. ANY ANCILLARY TERMS OR CONDITIONS PROVIDED BY YOU AND NOT CONTAINED IN THESE TERMS OF SERVICE, EVEN IF SIGNED BY FLEETIO, SHALL BE NULL AND VOID.

Rarestep, Inc. dba Fleetio (“Fleetio”, “we”, “us”, or “our”) provides services (“Services”) to you (“Customer”, “you” or “your”) through our websites and through our mobile apps. By using the Service, you are agreeing to be bound by these terms and conditions (“Terms of Service”). We reserve the right to update and change the Terms of Service from time to time and will provide notice to you by changing the “last updated” date above. All changes are prospective only. It is your obligation to be familiar with the most current version of the Terms of Service. Continued use of the Service after any such changes shall constitute your acknowledgment of and consent to such changes. You can review the most current version of the Terms of Service at any time at https://www.fleetio.com/terms. Any new features, including the release of new tools and resources, shall be subject to the then-most current Terms of Service.

You represent and warrant that you have the full right and power to enter into and fully perform these Terms of Service in accordance with these Terms of Service. If you are using the Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, “You” will refer and apply to that company or other legal entity.

ACCOUNT TERMS

You must be 18 years or older to use this Service.
You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
You must provide your full legal name, the legal name of your business (where applicable), a valid e-mail address, and any other information requested in order to complete the sign-up process. This information will be kept secure. You reserve the right to store and/or remove any personally identifiable information from your account.
You are responsible for maintaining the security of your password. We cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You will be solely responsible and liable for any activity that occurs within your account. In the event of any dispute between two or more parties about account ownership, you agree that we will be the sole arbiter of such dispute in our sole discretion and that our decision is final and binding.
You can create multiple logins for a single account. However, your login may only be used by one person. A single login shared by multiple people is not permitted.
You must not use the Service for any abusive or illegal purposes. You must not violate any laws, rules or regulations in your jurisdiction (including but not limited to copyright laws). You expressly agree and acknowledge that you will not submit information that would be a violation of your (or your employer’s, as the case may be) policies, including without limitation, any data protection, privacy or security policies or any data privacy laws, rules or regulations.
You may not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by us in connection with the Service.
The Service is always evolving and the form and nature of the Service may change from time to time. We reserve the right to modify the Service from time to time at any time, including adding or removing features.
We reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms of Service, including investigation of potential violations, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect our rights, property or safety as well as those of our users, customers, and the public.
You may not do any of the following while accessing or using the Service: (i) access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of our providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security measures; (iii) access or search or attempt to access or search the Service by any means (automated or otherwise) other than through our currently available, published interfaces; (iv) in any way use the Service to send altered, deceptive or false information; (v) otherwise interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the Service; (vi) use the Service to store or transmit any “viruses,” “worms,” “Trojan horses,” “e-mail bombs,” “cancelbots” or other harmful computer code, files, scripts, agents or programs; (viii) use the Service to store or transmit deceptive, infringing, defamatory or otherwise unlawful or tortious materials, or to store or transmit material in violation of (x) third-party privacy or other rights, or (y) confidentiality obligations to third parties; or (ix) access the Service in order to build a competitive product or service.
Customer may only use the Services to manage that number of assets permitted to be managed under the Services plan purchased by Customer or as otherwise indicated in the Ordering Document.

In the event Fleetio has a reasonable belief that Customer or any Authorized User is engaged in any unauthorized access or use of the Service or other Fleetio technology in violation of these Terms of Use, Fleetio shall notify Customer. If Customer does not resolve such an issue within ten (10) days of receipt of such notice, Fleetio may suspend Customer’s access to the Services until such violation is resolved to Fleetio’s reasonable satisfaction. Fleetio will timely provide Customer notice of such suspension and the reasons for such suspension. Fleetio shall have no liability to Customer for such period of suspension and a suspension shall have no effect on Customer’s Service Period or on Customer’s obligation to pay fees hereunder.

TERM, BILLING AND PAYMENT

We may grant you a limited trial period during which you will receive the Service free of charge. Thereafter, you will be charged a recurring service fee in advance of the applicable service period you selected (“Service Period”).
Your account will be renewed automatically at the end of each Service Period until either you or we explicitly cancel the Service, which you may do through the Account Settings screen, and we may do by delivery to your email on file with us, of notice of termination.
You will be billed a non-refundable fee in advance of your applicable Service Period. You will pay fees via automatically processed payments (“AutoPay”). The first due date for fees shall be on the first day of your Service Period, and thereafter fees will be due on the first day of each subsequent payment period, which payment period is based upon the payment frequency selected by you. There will be no refunds or credits for partial use of service, upgrade/downgrade refunds, account cancellations, or refunds for months unused with an open account. If you have any questions about charges made to your account, please contact us immediately. If the charges were made in error, we will credit your account for the appropriate amount. We have a zero tolerance policy for chargebacks. If Customer disputes a credit card payment through a card issuer that is found to be valid, Customer will be permanently banned from the use of the Service.
For any change in your recurring service fee, we will automatically charge your credit card or bank account that you provided or bill you via other payment methods for the new rate on your next billing cycle.
Subscription fees are based on the number of assets managed by Customer using the Services. The maximum number of assets (the “Cap”) which may be managed using the Services was selected by Customer when Customer ordered the Services on Fleetio’s platform. Customer may request an increase in the Cap at any time during a Service Period, but Customer may not reduce the Cap during a Service Period. A new subscription fee quoted to Customer for a higher Cap shall apply effective on the day that new Cap becomes effective (“New Cap Effective Date”) until the end of the then-current Service Period, unless another Cap Increase is requested. Customer shall pay in advance, the additional amount owing as a result of the Cap increase (the “Additional Fee Amount”). By way of example only, using a 12 month Service Period starting on Jan. 1, 2024, with an annual subscription fee of $10,000, and increasing Customer’s Cap effective as of July 1, 2024 with a new annual subscription fee of $20,000 for the new Cap, such new subscription fee would apply to the period from July 1 through Dec. 31, 2024. There are 182 days from Jan. 1 through June 30, 2024 (leap year) (“First Half”) and 184 days from Jul. 1 through Dec. 31, 2024 (“Second Half”). The subscription fees for the First Half would be the product of $10,000 x 182/366 = $4,972.68. The subscription fees for the Second Half would be the product of $20,000 x 184/366 = $10,054.64. The total subscription fees for 2024 would be $4,972.68 + $10, 054.64 = $15,027.32. Customer would have already prepaid $10,000, and therefore the Additional Fee Amount would be $5,027.32. Customer’s method of payment on file shall be debited in the amount of the Additional Fee Amount on the New Cap Effective Date or promptly thereafter.
You must provide us with accurate billing information and keep this information up to date.
Customer may only dispute a debit or invoice, if any, within sixty (60) days of (a) receipt of an invoice, or (b) the earlier to occur of the debit appearing on Customer’s account page in the Services or on a statement (using the date of the statement) from the provider of Customer’s payment method on file.
By subscribing to the Service, you give us the right to charge your credit card, or bill you via other payment methods, for fees connected with the Service such as renewal fees or fees for extra services.
We reserve the right to change prices for the Service and any connected extra services at any time upon a 30-day notice from us. Such notice may be provided at any time by posting the changes to the Service itself.
You will pay any and all applicable international, federal, state, and local sales, use, value-added, excise, duty, and any other taxes, fees, or duties, not based on our net income, that are assessed on or as a result of the Service. Any such taxes, fees, and duties collected by us from you on behalf of a governmental agency shall not be considered a part of, a deduction from, or an offset against, payments due to us for the Service.
If any undisputed invoiced amount is not received by Fleetio by the due date specified in Section 3 above, then without limiting Fleetio’s rights or remedies, those charges may, commencing on such due date, accrue late interest at the rate of 1.5 percent of the unpaid and undisputed amount per month or the maximum amount permitted by law, whichever is less. If Customer becomes 20 or more days past due for any undisputed fees (by way of example only, by virtue of failure of payment method on file), Fleetio may, without limiting its other rights and remedies, suspend access or delivery of any pending Services until all undisputed past due charges thereunder and any related interest are paid. During any period for which access or delivery of the Services is suspended due to non-payment of undisputed fees, Customer shall continue to incur any fees and interest due.

CANCELLATION AND TERMINATION

You are solely responsible for properly canceling your account.
All of your information may be immediately deleted by us from the Service (including our secure servers used to store your information) upon cancellation. If you want to preserve your information, you must export your information before canceling your account. Your information cannot be recovered once your account is canceled.
Any abuse of the Service will lead to termination of your account. We reserve the right to decide what is considered abuse of the Service. If your account is terminated, your rights to use the Service will cease immediately. Termination is without prejudice to all other remedies available to us by law or under these Terms.
All provisions of these Terms of Service relating to disclaimers of warranties, limitation of liability and remedies and damages shall survive termination.

AUTHORIZED USERS

Customer shall be entitled to designate individuals as authorized users of the Services (each an “Authorized User”). Employees and non-employees (i.e., an independent contractor) may be Authorized Users. Customer shall take reasonable steps to ensure all Authorized Users use the Services only as permitted under these Terms of Use and shall be responsible for compliance with the terms of these Terms of Use by all Authorized Users, whether or not they are employees. Customer acknowledges and agrees that Authorized Users must provide Fleetio with certain identifying information. Customer is solely responsible for designating Authorized Users.

MOBILE SOFTWARE

Fleetio may make available software to access the Service via a mobile or tablet device ("Mobile Software"). To use the Mobile Software, Authorized Users must have a mobile device that is compatible with the Mobile Service. Fleetio does not warrant that the Mobile Software will be compatible with Authorized Users’ mobile devices. Fleetio hereby grants Customer a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for Customer’s Fleetio account on mobile devices owned or leased solely by the Authorized Users, for their sole use. Without limiting the generality of the “Account Terms” above, Customer may not and shall not permit any Authorized User to : (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. Customer acknowledges that Fleetio may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that Authorized Users are using on their mobile devices. Customer consents for itself and on behalf of the Authorized Users to such automatic upgrading on Authorized Users’ mobile devices, and agrees that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Fleetio or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by Customer or Authorized Users to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Fleetio reserves all rights not expressly granted under this Agreement.

to see the additional terms applicable to Mobile Software from Apple App Store.

The following applies to any Mobile Software Customer acquires from the Apple App Store or its successors ("Apple App Store-Sourced Software") as operated by Apple Inc. or one of its affiliates ("Apple"): To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the Apple App-Store Software. Customer acknowledges and agrees that this Agreement is solely between Customer and Fleetio, not Apple, and that Apple has no responsibility for the Apple App-Store Software or content thereof. Customer’s use of the Apple App-Store Software must comply with the App Store Terms of Service. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App-Store Software. In the event of any failure of the Apple App-Store Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Apple App-Store Software to Customer; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple App-Store Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Fleetio as provider of the software.

Customer and Fleetio acknowledge that Apple is not responsible for addressing any claims of Customer or any third party relating to the Apple App-Store Software or Customer’s possession and/or use of the Apple App-Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple App-Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Fleetio as provider of the Apple App-Store Software. Customer acknowledges that, in the event of any third party claim that the Apple App-Store Software or Customer’s possession and use of that Apple App-Store Software infringes that third party`s intellectual property rights, Fleetio, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. Customer and Fleetio acknowledge and agree that Apple, and Apple`s subsidiaries, are third party beneficiaries of this Agreement as relates to Customer’s license of the Apple App-Store Software, and that, upon Customer’s acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to Customer license of the Apple App-Store Software against Customer as a third-party beneficiary thereof.

to see the additional terms applicable to Mobile Software from Google Play

If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies: Use, duplication, or disclosure of the Mobile Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. Customer agrees to comply with all applicable laws related to use of the Mobile Software and the Services.

PRIVACY

See our Privacy Policy at https://www.fleetio.com/legal/privacy for information about our collection and use of your personally identifiable information (including Cookies). This Privacy Policy is expressly incorporated into these Terms of Service. For non-U.S. users, European Union General Data Protection Regulation (GDPR) compliance and Privacy Shield certification information can also be found in our Privacy Policy.

NO WARRANTIES OR REPRESENTATIONS

You understand and agree that the Service is provided “AS IS” and “AS AVAILABLE” and we expressly disclaim warranties of any kind, express or implied, including without limitation any warranty of accuracy, merchantability, fitness for a particular purpose, or non-infringement. We make no warranty or representation and disclaim all liability regarding the results that may be obtained from the use of the Service, the correctness or completeness of the data, the security, reliability or availability of the Service, or that the Service will meet any user’s requirements. Use of the Service is at your sole risk. Even though we use secure third party vendors and hosting partners (as detailed in our Privacy Policy) to provide the necessary hardware, software, networking, storage, and related technology required to run the Service, you understand and agree that you will be solely responsible for any damage to you (including loss of data) resulting from the use of the Service. The entire risk arising out of use, security, or performance of the Service remains with you. Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring fail-safe controls.

The above disclaimer applies to any damages, liability or injuries caused by any failure of the performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use the Service, whether for breach of contract, tort, negligence or any other cause of action.

SENSITIVE INFORMATION

“Sensitive Information” means any residential addresses or geolocation data (other than IP address), passwords, personal credit card or debit card information, personal financial account information, consumer credit information, personal health information, social security numbers or other similar government identifiers, passport and visa numbers, driver’s license numbers, birth dates, employment records, physical or mental health condition or information, information on racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation, or any other information that would be subject to the Health Insurance Portability and Accountability Act (HIPAA), the Payment Card Industry Data Security Standards (PCI DSS), or other laws, regulations, or industry standards designed to protect similar information. The expiration date of a driver’s license is not Sensitive Information, but any other information on a driver’s license is Sensitive Information.

You represent and warrant that neither you nor any of Authorized Users will transmit, upload, collect, manage, store, or otherwise process any Sensitive Information through the Services. You acknowledge and agree that YOU, BUT NOT FLEETIO, WILL BE LIABLE FOR ANY DAMAGES OR OTHER LIABILITY THAT MAY RESULT OR ARISE FROM THE TRANSMITTING, UPLOADING, COLLECTING, MANAGING, OR OTHERWISE PROCESSING OF ANY SENSITIVE INFORMATION BY YOU OR YOUR AUTHORIZED USERS THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, LIABILITY FOR BREACH OF CONFIDENTIALITY OR ANY SECURITY BREACH RELATED TO ANY SUCH SENSITIVE INFORMATION.

ANONYMIZED, AGGREGATED DATA

Fleetio may automatically collect certain usage data and information generated by, submitted, or uploaded to the Services relating to certain user actions taken on the platform, such as the number of times users access or use certain features. Fleetio may process such data for the purpose of generating anonymized, aggregated statistical data. Such anonymized, aggregated statistical data is used for internal purposes only, in order, among other things, to benchmark, as well as to maintain, secure, and improve the Services. Such data does not contain any Confidential Information of yours, or data or information that can be used to identify you, any Authorized User, or any individual.

LIMITATIONS OF LIABILITY

IN NO EVENT WILL WE OR OUR SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE FOR LOST PROFITS OR ANY OTHER DAMAGES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS CONTRACT OR ARISING FROM OR CONNECTED IN ANY WAY WITH YOUR USE OF OR INABILITY TO USE THE SERVICE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE EXCLUSION OF DAMAGES UNDER THIS SECTION IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW.

IF YOU ARE DISSATISFIED WITH THE SERVICE, YOU DO NOT AGREE WITH ANY PART OF THIS CONTRACT, OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST US WITH RESPECT TO THIS CONTRACT OR THE SERVICE, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.

IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING DISCLAIMERS AND LIMITATIONS ON LIABILITY, WE ARE FOUND RESPONSIBLE TO YOU FOR ANY REASON WHATSOEVER, OUR RESPONSIBILITY SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING SUCH EVENT AND SHALL NOT INCLUDE PUNITIVE DAMAGES OR CONSEQUENTIAL OR RESULTING DAMAGES OF ANY NATURE.

INTELLECTUAL PROPERTY

All information that you post to the Service must comply with applicable copyright laws. We claim no intellectual property rights over the material you provide to the Service when such material is tagged with personally identifiable information. We may share aggregated information that does not include personally identifiable information and we may otherwise disclose non-identifying information with third parties for industry analysis, demographic profiling, and other purposes. Any aggregated information shared in these contexts will not contain your personally identifiable information.

We give you a personal, worldwide, royalty-free, non-assignable, non-transferable, revocable, limited and non-exclusive license to use the Service. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by us, in the manner permitted by these Terms of Service.

You shall not copy, sell, transfer, distribute, publish, or assign your license to our Service in any format to any third party. In addition, you may not use the Service in any way that violates applicable federal, state, or international law, or for any unlawful purpose.

All right, title, and interest in and to the Service are and will remain the exclusive property of us (and our licensors, if applicable). The Service is protected by copyright, trademark, and other laws of both the United States of America and foreign countries.

All of the content generated by us for the Service and the software used for the Service is the property of us, our affiliates, or our suppliers, and is protected by United States of America and international copyright laws.

Nothing should be construed as granting, by implication, estoppels, or otherwise, any license or right to use any of the copyrighted works displayed or contained in the Service without our express, written consent. Nothing in these Terms of Service gives you a right to use any of our, our affiliates’, or our suppliers’ trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.

Any feedback, comments, or suggestions you may provide regarding the Services is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.

INDEMNIFICATION

You agree to indemnify, defend, and hold harmless, us and our respective officers, directors, employees, agents, licensors, representatives, and third party providers, to and from and against all claims, losses, expenses, judgment, damages and costs, and consequences of whatever nature, including reasonable attorneys’ fees, from any violation of these Terms of Service by you or your violation of any rights of a third party. We reserve the right to assume, at our sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.

GOVERNING LAW AND VENUE FOR RESOLVING DISPUTES

These Terms of Service and any underlying agreements or order forms shall be governed and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the laws of the State of Delaware and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You agree that any disputes arising with us or our affiliates, subsidiaries, employees, contractors, officers, directors, or third party providers from or related to these Terms of Service or your access to or use of the Service shall be resolved exclusively by binding arbitration conducted under the auspices of the American Arbitration Association in Birmingham, Alabama. You shall be responsible for initial payment of one-half of any arbitration fees, but upon final resolution, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs. However, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

NON-U.S. USERS

If you are in located outside the United States of America then by using the Service, you understand and consent to the processing of personally identifiable information on secure servers within the United States of America. For non-U.S. users, European Union General Data Protection Regulation (GDPR) compliance and Privacy Shield certification information can also be found in our Privacy Policy.

NOTICES

Any notices or other communications permitted or required of us under these Terms of Service, including those regarding modifications to these Terms of Service, will be in writing and given to you: i) by us via e-mail (to the address that you provide) or ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

By registering with us, you understand that we may send you communications or data from us regarding the Service, including but not limited to i) notices about your use of the Service, including any notices concerning violations of use, ii) updates, and iii) promotional information and materials regarding our products and services, via email and in-app message. We give you the opportunity to opt-out of receiving messaging from us at any time by following the opt-out instructions provided in the message.

GENERAL

If any part of these Terms of Service are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms of Service shall continue in effect. A printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All rights not expressly granted herein are reserved.

No failure to exercise or enforce any right or provision of these Terms of Service shall constitute a waiver of such right or provision.

The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.

You may not assign or transfer these Terms of Service, by operation of law or otherwise, without our prior written consent, which shall not be unreasonably withheld. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. We may assign or transfer these Terms of Service, at our sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.

Any claim related to this contract or the Service must be brought within one year. The one-year period begins on the date when the claim first could be filed. If it is not, then that claim is permanently barred. This applies to you and your successors. It also applies to us and our successors and assigns.

Neither party shall be responsible for any failure to perform or delay in performing any of its respective obligations under these Terms of Service, except for payment obligations, where and to the extent that such a failure or delay results from causes beyond the control of such party. Such causes shall include, without limitation, delays caused by the other party, failures caused by a third-party service, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like.

These Terms of Service are the entire and exclusive understanding and agreement between you and us regarding the Service and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between you and us regarding the Service.

QUESTIONS

If you have any questions about these Terms of Service, please contact us.