Last updated: January 17, 2023
These Terms of Service (these “Terms”) set forth the terms and conditions under which Field Service Holdings, LLC (“FieldRoutes”) will provide the products and services set forth in an Order Form (“Order Form”) executed by FieldRoutes and the entity signing the Order Form as “Company.” These Terms, together with the Order Form, and the Data Protection Addendum available at https://www.fieldroutes.com/customer-data-protection-addendum, incorporated by reference herein, are effective as of the date the applicable Order Form is executed (the “Effective Date”) and constitute a binding agreement between FieldRoutes and Company. With respect to any entity utilizing the Services with FieldRoutes’ written consent and as to which FieldRoutes and such entity have not entered into an Order Form, these Terms shall govern FieldRoutes’ provision of Services to such entity which shall be referred to as “Company” herein. FieldRoutes and Company may be collectively referred to below as the “Parties” or, individually, as a “Party.”
IMPORTANT: BEFORE USING THE SERVICES, COMPANY MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. BY CLICKING “I ACCEPT”, OTHERWISE ACCEPTING THESE TERMS, OR BY ACCESSING OR USING THE SERVICES, COMPANY EXPRESSLY ACKNOWLEDGES THAT COMPANY HAS READ AND UNDERSTOOD ALL OF THESE TERMS AND AGREES TO BE BOUND BY THESE TERMS.
FieldRoutes may provide Services through its affiliates hereunder. FieldRoutes may periodically make changes to these Terms of Service, and in such an instance, FieldRoutes will post the changes on this page and will indicate at the top of this page the date these Terms were last updated. FieldRoutes will also give Company not less than thirty (30) days advance notice of any material changes, unless such material changes result from changes in laws, regulations, or requirements from telecommunications or other providers. Following such notice, Company’s continued use of the Services on or after the date the updated version of these Terms are effective and binding constitutes Company’s acceptance of the updated version of these Terms. Company should periodically visit this page to review the current version of these Terms of Service so that Company is aware of any revisions. If Company does not agree to abide by these Terms, Company will not access, browse, or use the Service.
THESE TERMS CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE COMPANY TO SUBMIT CLAIMS COMPANY HAS AGAINST FIELDROUTES TO BINDING AND FINAL ARBITRATION, AND WAIVES EACH PARTY’S RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. UNDER THE ARBITRATION AGREEMENT, (1) COMPANY WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST FIELDROUTES ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) COMPANY WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
FieldRoutes will provide to Company the software, design, development, hosting, and consulting services that are described in each executed Order Form, as well as other products and services as requested by Company and agreed to by FieldRoutes from time to time (collectively, the “Services”), subject to these Terms and the additional terms, conditions, and limitations set forth in the Order Form (collectively, this “Agreement”). Company may request a quote (“Proposal”) from FieldRoutes either in the form of an oral or written request (email sufficient). Unless otherwise agreed, quoted prices are valid for thirty (30) days. In the event of a conflict between a fully executed Order Form and these Terms, the terms of the Order Form will control. Direct competitors of FieldRoutes (or third party agents acting on behalf of such direct competitors) are prohibited from accessing the Services. FieldRoutes is and shall remain an independent contractor of Company for all purposes related to this Agreement, and this Agreement shall not be deemed to create a partnership, joint venture, or employment or agency relationship between the Parties.
A. FieldRoutes Software-as-a-Service. If the Services include FieldRoutes providing Company access to certain software applications, downloadable mobile apps, user interfaces, analytical tools, and other features through the cloud (collectively, the “Subscription Services”), the Order Form shall specify (i) the Subscription Services being licensed; (ii) the term of the Subscription Services (“Subscription Term”); and (iii) the applicable fees. Subject to Company’s complete and ongoing compliance with the terms and conditions of the Agreement, FieldRoutes grants to Company, a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Subscription Services for internal business purposes, including allowing its customers (“End Users”) to access publicly available portions thereof, during the Subscription Term up to the usage limits set forth in the Order Form. The Subscription Term begins on the Effective Date and lasts for the period specified in the applicable Order Form, unless earlier terminated, including any applicable renewal terms. FieldRoutes reserves the right to modify or discontinue, temporarily or permanently, all or a part of the Subscription Services without notice. FieldRoutes will not be liable to Company or to any third party for any modification, suspension, or discontinuance of the Subscription Services, except that if FieldRoutes permanently discontinues the Subscription Services, FieldRoutes will provide Company, as Company’s sole and exclusive remedy, and FieldRoutes’ sole and exclusive liability, a pro-rated refund representing the unused (as of the date of termination) portion of any subscription fees that Company has paid in advance.
B. Onboarding Services. As part of the Services, Company may also request custom development, training, on-boarding, or other services described in the applicable Order Form (“Onboarding Services”). FieldRoutes will perform all Onboarding Services in a lawful, professional manner, and in accordance with each applicable Order Form. Onboarding Services will be provided within the time reasonably necessary for the completion thereof in the ordinary course of business, and in substantial conformity with any schedule incorporated in the Order Form or otherwise agreed in writing by the Parties. Unless otherwise set forth in the Order Form, all Onboarding Services will be rendered on a time and materials basis. FieldRoutes will not exceed the total time purchased without Company’s prior written approval. In addition to any particular items listed in an applicable Order Form, Company agrees to provide reasonable cooperation and information as necessary to permit FieldRoutes to perform the Onboarding Services. Company will reimburse FieldRoutes for pre-approved travel and expenses (at cost) incurred in connection with the Onboarding Services.
C. Creative Services. If the Services include FieldRoutes developing a website at the URL identified in the applicable Order Form (“Site”) for Company (“Creative Services”), the Site will be launched once FieldRoutes has completed the design and development of the Site (the “GoLive Date”). FieldRoutes will use commercially reasonable efforts to integrate any text, images, photos, audio, video, information, and other data provided by Company to FieldRoutes for integration into the Site (“Company Content”). Company hereby grants and shall grant to FieldRoutes on an ongoing basis, a worldwide, nonexclusive, irrevocable, fully paid-up, royalty-free, right to access, use, modify, create derivative works of, reproduce, transmit, distribute, publicly display, and otherwise exploit Company Content in connection with its provision of the Services. Without limiting the foregoing, FieldRoutes may use Company Content by reformatting it, summarizing it, displaying it publicly, and creating derivative works from it, for purposes of performing the Services and incorporating Company Content into the Site. Any and all updates and changes to the Site shall be made by FieldRoutes. After the GoLive Date, Company may make certain, limited aesthetic edits, but not functional changes to the Site. Any additional changes may be subject to additional fees. The Parties may otherwise agree in writing that FieldRoutes provide hosting and credentials for Company access to the Site, which may require additional fees. Company has the right to use the written content (e.g., alt text, meta tags, title tags, etc.) and images as to which Company paid FieldRoutes specifically to create as original works for Company. Company does not own and cannot recreate, license or assign any designs to any third party, and FieldRoutes reserves all rights therein. Company also does not own and cannot reuse any stock imagery FieldRoutes has provided and all ownership rights relating to such imagery will remain with FieldRoutes and its respective licensors, as applicable. Company shall be solely responsible for determining whether its use of the Creative Services is compliant with applicable laws, rules, and regulations, and any applicable third party agreements.
D. Integrated Services. The Services may contain services that are developed, provided, and maintained by a third-party provider (“Integrated Services”). Some of the Integrated Services are required, while others are provided to Company as an option that may be enabled and used as part of the Services. Integrated Services are governed by these Terms, any additional terms presented to Company pertaining to the Integrated Services (which shall prevail over these Terms in the event of any conflict), and any third-party terms of service governing the Integrated Services. By using any of the Integrated Services (such as programmable text/SMS, email, programmable voice, mail, route optimization, payment processing, etc.) provided through FieldRoutes, Company acknowledges and agrees that (i) Company is solely responsible for its operation of all Integrated Services in compliance with all applicable laws, rules and regulations in all jurisdictions governing the use of such Integrated Services, including but not limited to spam laws, telephone recording, and wiretapping laws, and (ii) Company will defend, hold harmless and indemnify FieldRoutes from and against any third-party claim arising out of or relating to Company’s use of the Integrated Services. In order to utilize the electronic payment processing capabilities in the Services, Company must enter into a separate payment processing agreement and register for an account as a sub-merchant with FieldRoutes’ designated payment processing service provider, and utilize such payment processing service provider for all electronic payments capabilities within the Services. FieldRoutes may disable the Integrated Services provided to Company if Company’s subscription to the Services, account, or rights to access and/or use the Services are otherwise suspended or terminated, or if Company or any of its End Users violate the Agreement, or any third-party terms of service, acceptable use policy, or other terms and conditions applicable to such Integrated Services. By enabling Integrated Services, Company consents, on behalf of Company and its End Users, to the processing, by the third-party service provider FieldRoutes utilizes to provide the Integrated Services, of all data provided, uploaded, generated, transmitted, stored within, and/or displayed via the Services, including the Site and Integrated Services, by Company or End Users under the Agreement (the “Company Data”). Company agrees that it will obtain consent from each End User to receive communications of the nature provided via the Integrated Services, to the extent required by applicable laws, rules and regulations, and by using the Integrated Services, Company represents and warrants to FieldRoutes that it has obtained such consent.
E. Paying for Leads and Receiving Compensation for Referrals.
(i) Enrollment. If Company is enrolled in FieldRoutes’ Affiliate Network program, Company may have the opportunity to pay for leads from out-of-area service providers while also being eligible to receive compensation for referring Company’s out-of-area leads to other service providers.
(ii) Referral Credit. When a potential customer visits Company’s website and provides a service address that is not within Company’s service area, FieldRoutes may elect to present this visitor one or more alternate service providers who service that visitor’s address. If the visitor becomes a lead or a customer of one of these alternate service providers, Company will be compensated via a referral credit.
(iii) Network Fee. Similarly, when a visitor from Company's service area visits a website of a different service provider and that visitor’s address is not within such service provider’s service area, the visitor will be provided a list of network providers who do service that visitor. If that visitor becomes Company’s lead or customer, Company will be charged a network fee.
F. Maintenance and Support. Subject to Company’s payment of the fees set forth in the applicable Order Form, FieldRoutes will provide the following maintenance and support services (“Maintenance & Support”): (i) telephone support Monday through Friday, 7:00am to 7:00pm Central Time for answering questions regarding operation of the Services and responding to maintenance requests; and (ii) patches, bug fixes, and corrections of the Services made generally available to FieldRoutes customers. Support tickets may be submitted to FieldRoutes via firstname.lastname@example.org, or calling Company’s FieldRoutes Support (833) 768-8371. Upon notification of any bug or error in the operation of the Services, FieldRoutes shall take reasonable steps to modify the Services to reasonably remediate reported bugs or errors that are material to operation or intended performance of the Services. Subject to Company’s continued compliance with the Agreement (including payment obligations), Maintenance & Support will be provided at no additional charge.
G. Changes to Scope of Onboarding or Creative Services. Changes to the Onboarding Services or Creative Services shall be memorialized in a writing signed by both Parties and FieldRoutes will not be obligated to commence or continue work in connection with any such changes until the additional fees and/or impact on the schedule for the project is agreed to by the Parties in writing. If extra work is required of FieldRoutes because of conditions that could not have been reasonably anticipated by FieldRoutes, or because Company’s existing hardware or software are not sufficient without upgrades, additions, or modifications, FieldRoutes will give Company written notice thereof prior to performing the extra work or implementing such upgrades, additions, or modifications, and will, upon request, provide an estimate for the work. Except as otherwise agreed, such work will be at FieldRoutes’ then-current standard hourly rates.
A. Company Account. Use of the Services requires a FieldRoutes Account. Company must provide complete and accurate information when registering for an Account. Company is responsible for keeping passwords secure. Company shall be liable to FieldRoutes for (i) Company’s End Users’ compliance with these Terms; and (ii) all use of the Services through Company’s Account, whether such use is authorized or unauthorized. Company is solely responsible for and shall take reasonable steps to prevent unauthorized access to the Services. Company shall notify FieldRoutes immediately (and in any event within 72 hours) of any known or suspected unauthorized use of the Services or breach of its security of which Company becomes aware, and shall use best efforts to prevent or contain and remediate any such unauthorized use and any breach of this Section 3.A. shall be deemed a material breach of the Agreement.
B. Administrators. Company shall designate personnel who are responsible for administering the Services (“Administrators”). FieldRoutes shall create a user account for each Administrator (“Admin Account”) to provide access to the online tools Company may use to access management, reporting, and certain other administration functions (“Admin Console”). Company is responsible for maintaining the confidentiality of passwords to Admin Accounts and ensuring that all activities that occur in connection with the Admin Accounts comply with these Terms. Company’s Administrators may have the ability to access, monitor, use, or disclose data of End Users. Company is solely responsible for managing Administrator access to the Admin Console and the Admin Account (including the timely removal of any Admin Account when the Administrator to which the Admin Account is assigned is no longer an employee or otherwise an authorized representative of the Company). Company will obtain and maintain all consents required by applicable laws, rules, and regulations, if any, from End Users to allow: (i) Company’s access, monitoring, use and disclosure of data of End Users and FieldRoutes through the Services providing Company with the ability to do so and (ii) FieldRoutes to provide and monitor the usage of the Services, which Company acknowledges and agrees shall not be deemed a breach of FieldRoutes’ obligations with respect to Company Data under the Agreement.
C. Company Responsibilities. Company acknowledges that FieldRoutes’ ability to provide the Services is dependent upon the full and timely cooperation of Company, as well as the accuracy and completeness of any information, data, documentation, and Company Content provided to FieldRoutes. Access to and use of the Services may require use of specific browser software, security certifications, and other procedures that support protocols used by the Services. Company is responsible for procuring and maintaining the network connections that connect Company to the Services. FieldRoutes’ performance of certain aspects of the Services is subject to and reliant upon Company’s timely and accurate communication of Company decisions and approvals in connection therewith and any delay or inaccuracy in the provision of such decisions and approvals by Company to FieldRoutes may result in a delay in FieldRoutes’ performance and the completion thereof. Company is responsible for abiding by the project timeline that is mutually agreed between the Parties. Should a delay attributable to Company alter the project timeline, then FieldRoutes has the right to modify the timeline to ensure alignment with FieldRoutes resource availability, bill Company for services that would have been rendered during the originally agreed timeline or bill Company for unrealized hours associated with Company delays, and Company agrees to pay all such amounts. Company shall promptly notify FieldRoutes of any security or availability related issues with respect to the Services. FieldRoutes shall not be responsible for the failure of Company to comply with environmental and site requirements, denial or hindrance of access to the installation, failure or unavailability of third-party materials necessary for FieldRoutes to perform hereunder, unforeseen or concealed conditions, or use by Company of its existing hardware or software which fails to comply with the published specifications.
D. Third Party Requests. Company agrees that FieldRoutes’ responsibilities do not extend to the internal management or administration of the Services for Company. Company is responsible for responding to questions and complaints from End Users or third parties relating to Company’s or End Users’ use of the Services. Company will use commercially reasonable efforts to resolve support issues before escalating them to FieldRoutes. If Company cannot resolve a support issue consistent with the above, then Company may escalate the issue to FieldRoutes’ technical support team. Company is responsible for responding to requests from third parties for records relating to any End User’s use of the Services. Third-Party requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure of records relating to their own use of the Services (“Third-Party Requests”). Company will first seek to obtain the information required to respond to the Third-Party Request on its own and will subsequently contact FieldRoutes only if it cannot reasonably obtain such information. FieldRoutes will, to the extent allowed by law and by the terms of the Third-Party Request and at Company’s expense: (i) promptly notify Company of its receipt of a Third-Party Request; (ii) comply with Company’s reasonable requests regarding its efforts to oppose a Third-Party Request; and (iii) provide Company with the information or tools required for Company to respond to the Third-Party Request.
E. Restrictions on Use. Except as otherwise expressly permitted by applicable law or provided for in the Agreement, Company shall not (and shall not permit any third party to): (i) sublicense, sell, resell, transfer, share, lease, or the functional equivalents thereof, the Services to a third party (unless expressly authorized in these Terms); (ii) interfere with security-related features of the Services, including by (1) disabling or circumventing features that prevent or limit use or copying of any content, or (2) attempting to reverse engineer the Services or any component, and in such an instance Company shall provide FieldRoutes with prior written notice; (iii) frame, wrap or otherwise reproduce material portions of the Services or attempt to create a substitute or similar service through use of, or access to, the Services; (iv) use the Services for uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage; (v) use the Services to store or transfer any Company Data that is controlled for export under applicable export control laws and regulations; (vi) permit any other company, individual or third party, other than employees of Company, to access Company’s Admin Accounts; (vii) modify, adapt, translate or create derivative works based on any part of the Services, the Subscription Services or any FieldRoutes software or content; (viii) remove or modify any legal, copyright, trademark, or other proprietary rights notices that appear in or on the Services or any components thereof that Company receives or accesses pursuant to the Agreement; (ix) use the Services in violation of any applicable laws, rules, or regulations; (x) interfere with the operation of the Services or any user’s enjoyment of the Services, including by: (1) uploading to the Service or otherwise disseminating any virus, adware, spyware, worm, or other malicious code, (2) making any unsolicited offer or advertisement to another user of the Services, (3) collecting personal information about another user or third party without consent, or (4) interfering with or disrupting any network, equipment, or server connected to or used to provide the Services; (xi) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying age or date of birth; (xii) sell or otherwise transfer the access granted under the Agreement or any right or ability to view, access, or use the Services; (xiii) seek to hack the security mechanisms of the Service or FieldRoutes otherwise determines that Company’s use of the Service poses a security risk to us or to another user of the Service; (xiv) cause network interference that affects Service performance for other customers; (xv) use the Service in a way that FieldRoutes determines, in its sole discretion, is abusive or disrupts or threatens the performance or availability of the Service; (xvi) use the Service in a way that infringes, or misappropriates the rights of any third party or (xvii) attempt to do any of the acts described in this Section or assist or permit any person in engaging in any of the acts described in this Section. Company will use commercially reasonable efforts to prevent unauthorized use of the Services and to terminate any unauthorized use. Company will promptly notify FieldRoutes of any unauthorized use of, or access to, the Services of which it becomes aware.
F. Application Programming Interface. As part of the Services, FieldRoutes may provide Company with a programming interface that permits the transmission of data to and from the Services (“API”). In addition to the restrictions set forth above with respect to Company’s use of the Services, Company shall not, and shall not encourage or authorize others to: (i) disclose or provide any programming interface that permits the transmission of data to or from FieldRoutes’ APIs to any person or entity other than to Company’s employees; (ii) use the APIs for any illegal, unauthorized or otherwise improper purposes, or in any manner which would violate this Agreement, or breach any laws or regulations, or violate the rights of third parties; (iii) charge, directly or indirectly, any incremental fees (including any unique, specific, or premium charges) for access to the FieldRoutes data or the APIs; (iv) advertise the product or services of FieldRoutes’ competitors or use the APIs in a way that competes with products or services offered by FieldRoutes; (v) sell, lease, share, transfer, sublicense, or fail to protect the confidentiality of, any data obtained through the APIs, directly or indirectly, to any third party, including any data broker, ad network, ad exchange, or other advertising monetization-related party; (vi) use the APIs in a manner that, as determined by FieldRoutes in its sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of this Agreement; (vii) use or access the API to aggregate, cache, or store geographic location information or other information accessible via the API or in conjunction with, or combine data from the APIs with, other FieldRoutes data obtained through scraping or any other means outside the official FieldRoutes APIs; (viii) interfere with or disrupt the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services, or transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature through your use of the APIs; or (ix) distribute unsolicited advertising or promotions, or send messages, make comments, or initiate any other unsolicited direct communication or contact with third parties in violation of any laws, including without limitation the CAN-SPAM Act, 16 CFR 316, and similar state laws.
A. Authorized Applications. FieldRoutes shall configure the Services to operate with authorized third-party applications as set forth in the Order Form (the “Authorized Applications”). Company may request that additional applications be included with the Authorized Applications by providing FieldRoutes with written notice of the additional applications to be included with the Authorized Applications. To the extent any fees or expenses are to be incurred based on use or installation of the Authorized Applications, Company shall be responsible for any such fees or expenses, which shall be billed to Company.
C. California Privacy Law. If Company is a “Business” as defined by the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time (“CCPA”) and FieldRoutes processes Personal Information (as defined by the CCPA) relating to Company’s customers pursuant to Company’s instructions in the course of providing the Services, FieldRoutes (a) will not sell such Personal Information and (b) will only retain, use, or disclose such Personal Information as needed to perform the Services in connection with FieldRoutes’ relationship with Company or as otherwise permitted by the CCPA. Company agrees that Company will provide Personal Information to FieldRoutes in compliance with the CCPA and as a condition precedent to FieldRoutes providing the Services to Company. Company acknowledges that Personal Information is not exchanged for money or other valuable consideration. Company is solely liable and agrees to hold harmless, defend and indemnify FieldRoutes for any damages or reasonable costs, including attorneys’ fees and interest, arising from or related to the collection, use, retention, disclosure of Personal Information by FieldRoutes as directed by Company. The Parties further agree that Company is responsible for responding to any requests from California residents pursuant to the CCPA, and that if FieldRoutes receives any such requests, FieldRoutes shall direct the requester to contact Company directly. Company is solely responsible for any and all data, including Company Data, exported from the Services by or at the direction or request of Company, including via API.
A. Pricing. Company will be charged the fees and charges with respect to the Services as set forth in an Order Form and those fees and charges incurred within the Service (the “Fees”). Subject to any modifications in an applicable Order Form, the current pricing for the Services is set forth in the pricing schedule that is available within the FieldRoutes knowledge base or upon written request from FieldRoutes (the “Pricing Schedule”). If Company has not entered into an Order Form, the Fees will be as agreed in writing between FieldRoutes and Company, provided that FieldRoutes reserves the right to change such pricing at any time upon 30 days’ prior notice to Company; if there is no separate agreement between FieldRoutes and Company with respect to the Fees, Company shall pay the prices set forth in FieldRoutes’ then-current Pricing Schedule. FieldRoutes reserves the right to change its pricing or to impose additional charges for usage, storage, bandwidth, or transactions which FieldRoutes, in its reasonable discretion, deems to be excessive or abusive. FieldRoutes will provide notice of any such changes or additional charges, which will be effective upon commencement of the next Renewal Term. If any third party increases the fees it charges to FieldRoutes for any part of the Services being provided to Company, FieldRoutes will provide notice to Company of any resulting increase to the Fees, which will be effective immediately. Invoiced amounts are due upon receipt. Any invoice not paid within thirty (30) days after it is sent to Company will accrue interest at 1.5% per month or, if lower, the highest rate allowed by law. Company will be responsible for all expenses (including reasonable attorneys’ fees and all costs of collection) incurred by FieldRoutes in collecting such delinquent amounts except where such delinquent amounts are solely due to FieldRoutes’ billing inaccuracies. In addition to enforcement of late fees, FieldRoutes may also suspend Services any time payments reach thirty (30) or more days past due based on the invoice date. Reactivation of Company’s Account will only occur after payment in full is received. For Services provided by FieldRoutes, unless otherwise set forth in an applicable Order Form, FieldRoutes shall invoice Company as follows:
i. Subscription Services and Usage. Following execution of the Order Form, FieldRoutes shall submit invoices for the Subscription Services monthly in advance. Invoices shall be due and payable upon receipt on each monthly anniversary of the Subscription Term. Usage fees begin on the Effective Date and are billed semi-monthly. Usage fee invoices are due upon receipt. FieldRoutes may monitor Company’s usage of the Subscription Services for any overage. If Company’s usage of the Subscription Services is in excess of the usage limits set forth in the Order Form, Company will be billed for those overages. All payment obligations for the Subscription Services are non‐cancelable and all amounts paid are non-refundable and non-recoupable. ii. Onboarding and Creative Services. For Services performed on a time-and-materials basis, Company will be invoiced at the rates set forth in the applicable Order Form, or, if no rate is specified, at FieldRoutes’ then-current standard hourly rates. For Services performed on a fixed fee basis, unless a different schedule is set forth in the applicable Order Form, all such fees will be charged in advance. If Services are provided on an as‐needed basis (for example, when additional Creative Services may be requested mid‐project), then Fees for such Services will be invoiced monthly.
B. Reimbursable Expenses. Except as otherwise provided in an applicable Order Form, Company shall be responsible for all the necessary and reasonable travel, lodging, and related out-of-pocket expenses that FieldRoutes’ employees or independent contractors may incur in performing the Services for Company (“Reimbursable Expenses”). All Reimbursable Expenses will be pre-approved and, upon request, copies of receipts will be provided.
C. Taxes. Company will pay any and all applicable taxes, however designated, incurred as a result of or otherwise in connection with the Agreement or the Services, excluding taxes based on the net income of FieldRoutes. In the event Company is a tax-exempt entity, Company shall provide appropriate documentation to FieldRoutes as evidence of its tax-exempt status, and upon which, Company will not be charged the applicable taxes.
D. Payment Method. Company agrees to place a valid payment method on file with FieldRoutes and authorizes FieldRoutes to use that payment method to pay the Fees as outlined in the Order Form. The payment method may be a debit or credit card, a direct debit from a bank account, or an offset to merchant settled funds prior to disbursement if merchant processing is provided as an Integrated Service. Company agrees that the payment method on file is authorized for use for all future projects and ongoing Services. FieldRoutes will bill the payment method provided by Company for all applicable Fees when due. If a debit or credit card authorization, or a direct debit from a bank account, is declined, reversed, returned, or charged-back, FieldRoutes will notify Company of the delinquent balance, and if Company fails to promptly clear such charges, FieldRoutes may immediately suspend or cancel the Subscription Services and/or other Services in its sole discretion. FieldRoutes reserves the right to require payment by Company hereunder via a specified payment method, such as automated clearing house transfer, to the exclusion of other payment methods, upon written notice to Company, and in such an instance, Company shall promptly provide any required account or other payment information to FieldRoutes upon request. If Company’s merchant processing is provided as an Integrated Service, FieldRoutes shall also have the right to immediately, without prior consent or notice, offset or debit such amounts from merchant funds: (i) held in deposit; (ii) due to Company; (iii) held in a reserve; or (iv) available in Company’s bank account or other payment instrument registered with the merchant processing bank or service provider. By continuing to use the Services after receiving notice of a Fee increase, Company confirms and re-authorizes automatic payments for the Services.
B. Property Rights Retained by FieldRoutes. Company acknowledges that, in connection with the Services, FieldRoutes may provide certain text, articles, images, photos, audio, video, data, databases, concepts, know-how, or other proprietary information and materials (“FieldRoutes Content”) for publication on the Site and/or distribution to End Users. The FieldRoutes Content was not created solely for Company and Company acknowledges that FieldRoutes Content will not become the property of Company, other than a license to use the FieldRoutes Content during the Term as incorporated in the Site or otherwise authorized by FieldRoutes. Except for Company Data, the FieldRoutes Content and all materials used or created by FieldRoutes while providing the Services shall be FieldRoutes’ exclusive property, including, without limitation, all copyrights, trademarks, patents, trade secrets and any other proprietary rights and shall not be claimed to be a work-for-hire.
C. Feedback. During the Term of the Agreement, Company or its Administrators may elect to provide FieldRoutes with feedback, comments, and suggestions with respect to the Site or Services (“Feedback”) and End Users may submit or transmit materials and data to, through, or in connection with the Site and Services, such as reviews, ratings, comments, messages, and other information (“End User Content”). Company grants, on behalf of itself, its Administrators and End Users, to FieldRoutes a non-exclusive, fully-paid, royalty-free, perpetual and irrevocable license to exploit any and all such Feedback and End User Content in any manner and for any purpose without compensation or attribution to Company, its Administrators, End Users, or any third party.
A. Mutual Warranty. Each party warrants that it has the full right and legal authority to enter into, execute, and perform its obligations under the Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by the Agreement.
B. Company Warranty. Company hereby represents and warrants to FieldRoutes that: (i) Company owns all Company Content and Company Data provided to FieldRoutes in connection with the Services; (ii) the Company Content and Company Data does not and will not infringe any applicable laws, regulations, intellectual property rights, or other third-party rights, and is not material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, or blasphemous; (iii) Company will not upload or request that FieldRoutes import any information (including personal information) to the Service unless Company has all consents, permissions and licenses necessary to do so and to authorize FieldRoutes’ collection, use, disclosure and retention of such information in accordance with the Agreement; and (iv) Company’s use of the Service will not subject FieldRoutes to any liability or cause FieldRoutes to violate any law, rule, or regulation. FieldRoutes reserves the right to remove any content from the Site when, in its sole determination, it is required to do so by applicable law or removal is necessary to protect FieldRoutes. FieldRoutes will use reasonable efforts to notify Company if it becomes aware of any allegation that any Company Content on the Site may be inappropriate.
C. FieldRoutes Software Warranty. FieldRoutes warrants that the Subscription Services will perform substantially in accordance with the applicable technical manuals, training materials, specifications, or other documentation. Company’s sole and exclusive remedy and FieldRoutes’ entire liability for any breach of this warranty shall be limited, at FieldRoutes’ option, to either the repair or replacement of the portion of the software provided as part of the Subscription Services which is nonconforming or to refund any fees prepaid by Company for such portion of the software included in the Subscription Services which is nonconforming. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER.
D. FieldRoutes Services Warranty. FieldRoutes warrants that the Creative Services and Onboarding Services will be performed in a professional and workmanlike manner, in accordance with all laws applicable to FieldRoutes as a service provider, and will substantially conform to generally accepted industry standards for similar work. If FieldRoutes breaches the foregoing warranty, Company’s sole and exclusive remedy, and FieldRoutes’ sole liability, will be for FieldRoutes to re-perform the particular Creative Services and/or Onboarding Services, as applicable, at no cost to Company, to bring them into compliance with such warranty. Any claim for breach of the foregoing warranty must be made by written notice to FieldRoutes within ninety (90) days after discovery of the breach, and in no event more than twelve (12) months after the GoLive Date for a Site or the date of final import. IF FIELDROUTES IS NOT ABLE TO REMEDY ANY BREACH OF WARRANTY AFTER A REASONABLE NUMBER OF ATTEMPTS, THEN FIELDROUTES’ LIABILITY TO COMPANY SHALL NOT, IN ANY EVENT, EXCEED THE AMOUNT ACTUALLY PAID TO FIELDROUTES BY COMPANY FOR THE PARTICULAR CREATIVE SERVICES OR ONBOARDING SERVICES, AS APPLICABLE.
E. Limitations. Notwithstanding anything to the contrary, FieldRoutes will not be liable or responsible for: (i) any modification of the Services by any party other than FieldRoutes; (ii) any use of the Services other than in accordance with the applicable Order Form and manuals, instructions, and other materials provided by FieldRoutes; or (iii) failures or defects in any Company Content, Company Data, or third-party software. Company expressly represents and warrants to FieldRoutes that it does, and will continue to, regularly perform back-ups of the Company Data, and that in no event will FieldRoutes be liable for recovery or restoration of Company Data or other data.
F. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, COMPANY ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) FIELDROUTES DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR FREE; (B) FIELDROUTES DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT COMPANY DATA WILL REMAIN PRIVATE OR SECURE; (C) FIELDROUTES ASSUMES NO RESPONSIBILITY FOR THE USE OF THE SERVICES; (D) FIELDROUTES AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE; AND (E) FIELDROUTES MAKES NO REPRESENTATION OR WARRANTY THAT FIELDROUTES WILL ISSUE UPDATES OR ENHANCEMENTS TO THE SERVICE. THE SERVICE IS NOT FAULT TOLERANT AND IS NOT DESIGNED OR INTENDED FOR HIGH-RISK ACTIVITIES. IF THE EXCLUSION OF IMPLIED WARRANTIES IS DISALLOWED, THEN, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE COMMENCEMENT OF THE INITIAL TERM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY COMPANY FROM THE SERVICE OR FIELDROUTES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE REGARDING FIELDROUTES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THE AGREEMENT. FIELDROUTES IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND COMPANY’S DEALINGS WITH ANY OTHER SERVICE USER. COMPANY UNDERSTANDS AND AGREES THAT COMPANY’S USE OF ANY PORTION OF THE SERVICE IS AT COMPANY’S OWN DISCRETION AND RISK, AND THAT FIELDROUTES IS NOT RESPONSIBLE FOR ANY DAMAGE TO COMPANY PROPERTY (INCLUDING COMPANY COMPUTER SYSTEMS OR MOBILE DEVICES USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING COMPANY DATA AND COMPANY CONTENT.
A. Confidential Information. For purposes of this Section, a Party receiving Confidential Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Disclosing Party.” “Confidential Information” means all financial, technical, strategic, marketing, and other information relating to the Disclosing Party or its actual or prospective business, products, or technology that may be, or has been, furnished or disclosed to Recipient by, or acquired by Recipient directly or indirectly from the Disclosing Party, whether disclosed orally, in writing, or electronically, and, FieldRoutes Confidential Information shall include any non-public terms and conditions of all agreements in place with Company and all FieldRoutes pricing terms. Confidential Information does not include that which was: (a) as of the Effective Date of the Agreement, generally known to the public without breach of the Agreement; (b) is or becomes generally known to the public after the date of the Agreement other than as a result of the act or omission of Recipient; (c) was already in the possession of the Recipient without any obligation of confidence; (d) released by Disclosing Party with its written consent to third parties without restriction; (e) lawfully received by Recipient from a third party without an obligation of confidence; (f) independently developed by Recipient outside the scope of this relationship by personnel not having access to any Confidential Information; or (g) is required to be disclosed in accordance with a judicial or governmental order or decree, provided that the Recipient provides prompt notice of the order or decree to the Disclosing Party (to the extent permitted by law) and reasonably cooperates with the Disclosing Party to limit the disclosure and use thereof.
A. Term. Unless a different term is set forth in an applicable Order Form, the term of the Agreement shall be for two years from the Effective Date (“Initial Term”) and, thereafter, automatically renewing for successive one-year periods (“Renewal Term”). The Initial Term and any Renewal Terms are together referred to as the “Term.” Either Party may decide not to renew this Agreement by notifying the other Party of its intent not to renew at least ninety (90) days prior to the end of the Initial Term or the then-current Renewal Term. Unless otherwise provided for in the applicable Order Form, the rates applicable to the Services for any such subsequent Renewal Term shall be increased by the greater of (i) five percent (5%) or (ii) FieldRoutes’ then current list prices, and Company acknowledges and agrees that Company’s payment method on file will be charged automatically at the applicable rates unless a valid notice of non-renewal is provided prior to the end of the Term pursuant to this Section.
B. Termination. Either Party may terminate this Agreement or any applicable Order Form upon breach by the other Party of any material provision of an applicable Order Form or this Agreement, which has not been cured within thirty (30) days after receipt of written notice of such default. Further, FieldRoutes shall have the ability to terminate this Agreement for cause if Company: (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is dismissed or vacated within forty-five (45) days after filing; or (iii) is dissolved or liquidated or takes any corporate action for such purpose, makes a general assignment for the benefit of creditors, or has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction. If Company has executed multiple Order Forms, termination of an Order Form shall not automatically terminate this Agreement nor any other Order Form.
C. Effects of Expiration or Termination. Company shall pay all Fees and other amounts owing to FieldRoutes accrued prior to the effective date of any expiration or termination of the Agreement. Following expiration or termination, Company is solely responsible for maintaining, protecting, and making backups of Company Data. To the extent permitted by applicable law, FieldRoutes will not be liable for any loss, corruption, or failure to store Company Data. Company is encouraged to frequently backup and archive Company Data. FieldRoutes shall provide Company access to and the ability to export certain Company Data and Company Content following the expiration or termination of an account or of the Services if requested by Company by notice to FieldRoutes within thirty (30) days of expiration or termination. It is FieldRoutes’ standard practice to delete Company Data by removing pointers to it on FieldRoutes’ active servers and overwriting it over time. The termination of the Services may result in the automatic cancellation of all associated Accounts. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability. Company agrees that FieldRoutes shall not be liable for any damages arising from such expiration or termination.
If Company or End User believes that anything on FieldRoutes’ website or Services infringes any intellectual property right that Company or End User owns or controls, such party may file notification of infringement with FieldRoutes’ designated agent via the following contact information:
Name of designated agent: FieldRoutes Chief Financial Officer
Address for notification: 4500 Eldorado Pkwy Suite 3200 McKinney, TX 75070
Telephone number: (214) 466-1765
For the requirements of proper notification under the Digital Millennium Copyright Act (“DMCA”), please see 17 U.S.C. §512(c)(3). FieldRoutes responds expeditiously to notices of infringement. FieldRoutes has (in accordance with the DMCA and other applicable law), adopted a policy to terminate, as appropriate and at FieldRoutes’ sole discretion, accounts deemed to be repeat infringers. FieldRoutes may also terminate this Agreement and account of, or access by, any Company or End User who infringes any rights (whether FieldRoutes’ or others), regardless of whether there is repeat infringement.
COMPANY AGREES THAT FIELDROUTES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OR CORRUPTION OF DATA, LOSS OF REVENUES, PROFITS, GOODWILL OR ANTICIPATED SALES OR SAVINGS, PROCUREMENT OF SUBSTITUTE SERVICES, OR INTERRUPTION TO BUSINESS OR WASTED ADMINISTRATIVE TIME. THESE EXCLUSIONS APPLY REGARDLESS OF THE THEORY OF LIABILITY (EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), OR WHETHER RELATED TO COMPANY’S OR END USER’S USE OR INABILITY TO USE THE SERVICES, OR OTHERWISE. THESE EXCLUSIONS APPLY EVEN IF FIELDROUTES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT ALLOWED BY LAW, THE MAXIMUM LIABILITY OF FIELDROUTES (WHICH INCLUDES, COLLECTIVELY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIES AND LICENSORS) SHALL NOT EXCEED THE GREATER OF: (I) THE FEES PAID BY COMPANY TO FIELDROUTES DURING THE TWELVE (12) MONTHS WHICH IMMEDIATELY PRECEDE THE EVENT WHICH GIVES RISE TO THE CLAIM OF LIABILITY OR (II) $100.00. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE CLAIMS ARE CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THIS LIMITATION OF LIABILITY FOR SERVICES IS IN THE AGGREGATE AND NOT PER INCIDENT. PLEASE NOTE THAT THIS LIMITATION OF LIABILITY SECTION DOES NOT APPLY TO END USERS WHO ARE NEW JERSEY RESIDENTS TO THE EXTENT SUCH END USERS ARE “CONSUMERS” AS DEFINED IN N.J. Stat. § 56:12-15.
Company agrees to indemnify, defend, and hold FieldRoutes, its affiliates, subsidiaries, officers, directors, agents, employees, consultants, advertisers, partners, and licensors harmless from and against any third party claim, action or lawsuit (“Claim”) and any related liability, damage, loss, and expense, including reasonable attorney’s fees and costs, arising out of or related to (i) Company’s use or misuse of the Services (including any actions or inactions taken under Company’s account); (ii) an End User’s use of the Services; (iii) any improper or illegal use of the Services, Company’s account or Admin Account, including improper or illegal use by Company, an Administrator, an End User, or a third party; (iv) Company Data, Company domain names, or Company Brand Features; (v) any breach or violation of any portion of the Agreement, any representation, warranty, or agreement referenced in the Agreement, or any applicable law or regulation by Company or an End User; (vi) Company’s violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, in connection with Company’s use of the Services or any data, materials or information Company provides to the Services; or (d) any dispute or issue between Company and any third party, including but not limited to any expenses for chargebacks, fines or fees for which FieldRoutes becomes liable for as a result of Company’s usage of electronic payment processing capabilities within the Services and arising other than in connection with any act or failure to act on the part of FieldRoutes or defect with such electronic payment processing capabilities. In the event of such a claim, FieldRoutes will endeavor to provide Company with prompt notice of the same; provided, however, that any failure to deliver notice promptly will not eliminate or reduce Company’s indemnification obligations under these Terms. Company has full control and authority over the defense, except that: (a) any settlement requiring FieldRoutes to admit liability or to pay any money will require FieldRoutes’ prior written consent; and (b) FieldRoutes may join in the defense or assume the exclusive control of the defense with its own counsel at its own expense. FieldRoutes reserves the right, at FieldRoutes’ own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Company (without limiting Company’s indemnification obligations with respect to that matter), and in that case, Company agrees to cooperate with FieldRoutes’ defense of those claims.
A. Entire Agreement. The Agreement, including any applicable addenda, amendments, exhibits, and Order Forms executed in accordance herewith, constitute the complete and exclusive statement of the terms and conditions of the agreement between FieldRoutes and Company with respect to the Services, and supersedes all other agreements with respect to the subject matter hereof. The terms of any purchase order or other document issued by Company shall not be binding on FieldRoutes and shall not modify or become part of this agreement, or otherwise become a part of any agreement or contract between the Parties. Neither Party will, by the lapse of time, and without giving written notice, be deemed to have waived any of its rights under this Agreement. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
B. Assignment. Company may not assign or otherwise transfer its rights or delegate its obligations under this Agreement without the prior written consent of FieldRoutes, which shall not be unreasonably withheld. If assignment or transfer is approved by FieldRoutes, the same may be conditioned on the following: (a) the assignee agrees in writing to be bound by the terms of the then-current Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt by Company to transfer or assign not in accordance with this provision is void. For the purposes of this Section, a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) is considered an assignment or transfer. FieldRoutes may assign the Agreement or any right, duty, or obligation under the Agreement, at any time without Company’s consent.
C. Notices. Any notice by FieldRoutes to Company under these Terms will be deemed effective upon sending an email to the email address set forth in the Order Form or alerting Company via the Admin Console. Any notice by Company to FieldRoutes under these Terms will be deemed effective upon alerting FieldRoutes by contacting email@example.com. Notwithstanding the foregoing, a provision expressly requiring written notice by either Party herein must be delivered to the other Party’s legal department at its current address and must be provided by (i) personal delivery, deemed effective upon receipt; (ii) overnight courier, deemed effective upon written or electronic verification of receipt; or (iii) registered or certified mail, deemed effective upon verification of receipt through the USPS. Any invoices and payments to FieldRoutes shall be sent to the attention of FieldRoutes accounting, to be deemed effective in a manner consistent with the provisions of the preceding sentence. FieldRoutes may update its address or addressee information in a manner consistent with this Section.
D. Electronic Signatures. The Parties consent to electronic signatures for the purpose of executing an Order Form referencing these Terms by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Order Form had been signed manually.
E. Marketing. Neither Party may issue press releases related to this Agreement without the other Party’s prior written consent. Company agrees that FieldRoutes may use Company’s name, logo, and marks to identify Company as a FieldRoutes customer on FieldRoutes’ website and in marketing materials.
F. Force Majeure. In no event shall either Party be liable for any delay or failure to perform under an Order Form (other than an obligation for the payment of money) to the extent such failure or delay is due to causes beyond its reasonable control, including, but not limited to, acts of god, flood, fire, natural disaster, accident, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, complete or partial government shutdown, passage of a law or act of government, strikes or other labor disturbances, or national or regional shortage or disruption of adequate power, telecommunications, or transportation.
G. Governing Law. This Agreement is governed by the laws of the State of Texas, without regard to principles of conflicts of law. Subject to Section 13(H), Company and FieldRoutes hereby irrevocably and unconditionally submit and attorn to the personal and exclusive jurisdiction of the state and federal courts located within Collin County, Texas, for resolution of any lawsuit or court proceeding permitted under the Agreement. The Parties stipulate that the United Nations Convention for the International Sale of Goods and Article 2 of the Uniform Commercial Code shall not apply to this Agreement. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO THEIR RELATIONSHIP. THE PARTIES ACKNOWLEDGE THAT A RIGHT TO A JURY IS A CONSTITUTIONAL RIGHT, THAT THEY HAVE HAD AN OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL, AND THAT THIS JURY WAIVER HAS BEEN ENTERED INTO KNOWINGLY AND VOLUNTARILY BY ALL PARTIES TO THIS AGREEMENT. IN THE EVENT OF ANY LAWSUIT OR COURT PROCEEDING PERMITTED UNDER THE AGREEMENT, THE AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
H. Dispute Resolution. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS COMPANY’S RIGHTS.
(1) Agreement to Arbitrate. This Section H is referred to as the “Arbitration Agreement.” Company agrees that any and all disputes or claims that have arisen or may arise between Company and FieldRoutes, whether arising out of or relating to the Agreement, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Company may assert individual claims in small claims court, if Company claims qualify. Company agrees that, by agreeing to this Arbitration Agreement, Company and FieldRoutes are each waiving the right to a trial by jury or to participate in a class action. This Arbitration Agreement includes all claims arising out of or relating to any aspect of the Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Agreement. Each party’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
(2) Prohibition of Class and Representative Actions and Non-Individualized Relief. Company and FieldRoutes agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Company and FieldRoutes agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
(3) Pre-Arbitration Dispute Resolution. FieldRoutes is always interested in resolving disputes amicably and efficiently, and most participant concerns can be resolved quickly and to the participant’s satisfaction by emailing your designated FieldRoutes customer support team. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to FieldRoutes should be sent to Field Service Holdings, LLC, 4500 Eldorado Pkwy. Ste. 3200, McKinney, TX 75070, ATTN: Legal, with a copy (which shall not constitute notice) to ServiceTitan, Inc., 801 N. Brand Blvd., Suite 700, Glendale, CA 91203, ATTN: Legal. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If FieldRoutes and Company do not resolve the claim within sixty (60) calendar days after the Notice is received, FieldRoutes or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by FieldRoutes or Company shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Company or FieldRoutes is entitled.
(4) Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. Any arbitration hearing will take place at a location to be agreed upon in Dallas, Texas; if the parties are unable to agree on a location within Dallas, TX, the determination shall be made by AAA. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. If Company’s claim is for $10,000 or less, FieldRoutes agrees that Company may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If Company’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
(5) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
(6) Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
(7) Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (2) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause (2) are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Agreement (including the Terms of Service) will continue to apply.
I. Severability. If any provision of the Agreement is found to be invalid or unenforceable, the remaining provisions of the Agreement shall be interpreted so as best to reasonably effect the intent of the Parties. The Parties further agree to replace any such invalid or unenforceable provisions with valid and enforceable provisions designed to achieve, to the extent possible, the business purposes of such provisions.
J. Insurance. During the term of the Agreement, the Parties shall, at their own expense, carry and maintain policies of insurance meeting or exceeding industry recommended policies which may include, but not limited to, general commercial liability, automobile liability, cyber liability, errors and omissions, worker’s compensation, and umbrella liability. Upon a Party’s reasonable written request, the other Party shall provide a certificate of insurance evidencing the insurance requirements herein.
K. Notice to California Residents.If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
L. International Use; Export Control; Anti-Corruption.The Service is intended for use within the United States. FieldRoutes makes no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited. Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No software (including any mobile applications) may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using any software (including any mobile applications) is at Company’s sole risk. Company certifies that Company and its users are not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Company further certifies that Company will not export, re-export, ship, transfer or otherwise use the Service in any country subject to an embargo or other sanction by the United States, including Iran, Syria, Cuba, Sudan, Russia, the Crimea region of Ukraine, and North Korea and that Company will not use the Service for any purpose prohibited by applicable export laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. Company has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any FieldRoutes employees or agents in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Company learns of any violation of the above restriction, Company will promptly notify FieldRoutes in writing.
M. Third-Party Services and Websites.
ii. Google Maps. Google Maps presented to Company through the Service are powered by Google. Company’s use of Google Maps is subject to the Google Maps Terms of Service, available online at https://www.google.com/intl/en-US_US/help/terms_maps.html, and https://www.google.com/intl/ALL/policies/privacy/index.html, and by using the Service, Company is agreeing to be bound by such terms.
iii. Additional Third-Party Services. Certain additional terms that apply to Company’s use of Third-Party Services within certain features or functionality of the Service are attached to the Agreement. If Company accesses or uses those features or functionality, Company hereby agrees to those additional terms.
N. Third-Party Distribution Channels
i. Distribution Channels. This Section N only applies to the extent that a FieldRoutes mobile application is being used on a mobile device. FieldRoutes may make available a mobile application through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If such a mobile application is obtained through a Distribution Channel, Company may be subject to additional terms of the Distribution Channel. The Agreement is between Company and FieldRoutes only, and not with the Distribution Channel. To the extent that Company utilizes any other third-party products and services in connection with Company’s use of the Service, Company agrees to comply with all applicable terms of any agreement for such third-party products and services.
ii. Apple-Enabled Software. With respect to any mobile application made available for Company’s use in connection with an Apple-branded product, in addition to the other terms and conditions set forth in the Agreement, the following terms and conditions apply. Company acknowledges that the Agreement is between Company and FieldRoutes only, not with Apple Inc. (“Apple”), and Apple is not responsible for any mobile application or the content thereof. Company may not use any such mobile application in any manner that is in violation of or inconsistent with the “Usage Rules” set forth for such mobile application in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions. Company’s license to use any such mobile application is limited to a non-transferable license to use on an iOS product that Company owns or controls, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing programs. Apple has no obligation to furnish any maintenance and support services with respect to any such mobile application. Apple is not responsible for any product warranties, whether express or implied by law. If a mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for such mobile application, if any, to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to any mobile application, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be FieldRoutes’ sole responsibility, to the extent it cannot be disclaimed under applicable law. Apple is not responsible for addressing any claims by you or any third party relating to a mobile application or Company’s possession and/or use of a mobile application, including: (a) product liability claims; (b) any claim that a mobile application fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the a mobile application and/or your possession and use of a mobile application infringe a third party’s intellectual property rights. Company agrees to comply with any applicable third-party terms when using a mobile application. Apple and Apple’s subsidiaries are third party beneficiaries of the Agreement, and upon Company’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against Company as a third-party beneficiary of the Agreement. Company hereby represents and warrants that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Company must comply with applicable third-party terms of agreement when using any mobile application, e.g., the wireless data service agreement. If Company has any questions, complaints, or claims with respect to a mobile application, they should be directed to FieldRoutes as follows: firstname.lastname@example.org, 1-888-ROUTES1, 4500 Eldorado Pkwy., Ste. 3200, McKinney, TX 75070.
iii. Google-Sourced Software. The following applies to any mobile application Company downloads from the Google Play Store (“Google-Sourced Software”): (1) Company acknowledges that the Agreement is between Company and FieldRoutes only, and not with Google, Inc. (“Google”); (2) Company’s use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (3) Google is only a provider of Google Play where Company obtained FieldRoutes’ Google-Sourced Software; (4) FieldRoutes, and not Google, is solely responsible for the Google-Sourced Software; (5) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (6) Company acknowledges and agrees that Google is a third-party beneficiary to the Agreement as it relates to FieldRoutes’ Google-Sourced Software.
O. U.S. Government Restricted RightsThe Service is made available to the U.S. government with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Access or use of the Service (including any mobile application) by the U.S. government constitutes acknowledgement of FieldRoutes’ proprietary rights in the Service (including any mobile applications).
(ii) By entering into this Agreement, Company agrees on behalf of Company and any of Company’s employees and contractors to receive calls and text messages from FieldRoutes and persons acting on FieldRoutes’ behalf at the telephone numbers provided to FieldRoutes. Company understands and agrees that these calls and text messages may be made using an autodialer, artificial or prerecorded voice, or other automated technology. These communications may include operational communications concerning Company’s account, communications regarding the Service and marketing communications. Standard text messaging rates will apply. This agreement to receive promotional calls and texts is not a condition of any purchase or of use of the Service. To opt out, reply STOP to any text, make a do not call request on any call, or send an email to email@example.com with the telephone number and the opt out request.
(iii) FieldRoutes and its affiliates and third party service providers may also communicate with Company by email and push notifications in our mobile application. (iv) IF COMPANY WISHES TO OPT OUT OF COMMERCIAL EMAILS FROM FIELDROUTES, COMPANY AND/OR ANY USER CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL TEXTS, REPLY “STOP” TO A PROMOTIONAL TEXT OR SEND AN EMAIL TO firstname.lastname@example.org. WITH THE PHONE NUMBER AND REQUEST. TO OPT OUT OF PROMOTIONAL CALLS, PLEASE MAKE A DO NOT CALL REQUEST DURING ANY CALL RECEIVED, OR CALL US AT 1-888-ROUTES1.
FieldRoutes Payments™ Additional Terms
(a) Company’s use of FieldRoutes Payments (“Payments”) is subject to the following additional terms and conditions.
(b) PCI DSS Compliance. In the course of using Payments, Company will have access to and may collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information. Company agrees and acknowledges that Company shall at all times remain in compliance with Payment Card Industry Data Security Standard ("PCI DSS") requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at Company’s sole cost and expense. FieldRoutes agrees and acknowledges that FieldRoutes is responsible as well for the security of cardholder data that FieldRoutes possesses or otherwise stores, processes, or transmits on behalf of Company and to the extent that FieldRoutes could impact the security of Company’s cardholder data environment.
(c) Indemnification. To the fullest extent permitted by law, Company responsible for Company’s use of Payments, and Company will defend and indemnify FieldRoutes from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with your use of Payments, including, for the avoidance of doubt, any expenses for chargebacks, fines or fees for which FieldRoutes becomes liable for or otherwise incurs.
(d) Personal Guarantees. At any time or from time to time, FieldRoutes may require that Company provide a personal guarantee from a suitable person in order to begin or continue using Payments. FieldRoutes may at any time and without notice suspend Company’s use of or access to Payments pending the delivery of such a guarantee and, if Company refuses to provide or otherwise cannot provide such a guarantee within five (5) business days, FieldRoutes shall be entitled to suspend or terminate Company’s access to Payments as it deems fit without penalty or liability.
Marketing Pro™ Additional Terms
Company’s use of FieldRoutes’ Marketing Pro service (“Marketing Pro”) is subject to the following additional terms and conditions.
Fees for Marketing Pro. The fees Company will pay for Marketing Pro will depend on the number of active contacts in Company’s Marketing Pro account as set forth on the Order Form, the number and types of direct mail pieces Company orders and the individual features Company subscribes for and use. Direct mail fees will be billed in arrears each month based on usage and tier of service as of the billing date. FieldRoutes shall submit invoices for the Marketing Pro Subscription monthly in advance. Invoices shall be due and payable upon receipt on each monthly anniversary of the Subscription Term. All fees paid hereunder are non-refundable and non-recoupable (including with respect to any returned mail pieces).
Compliance with Law. Company represents and warrants that Company’s access to and use of Marketing Pro will comply with all applicable laws, rules and regulations, including but not limited to those that relate to privacy and data protection and to the sending of electronic communications. Company further represents and warrants that Company has a lawful basis for processing and sending Company Content and communications to Company’s customers, business contacts or followers who consent to receiving marketing or promotional messages from Company or on Company’s behalf (“Contacts”), whether through legally appropriate express consents or otherwise. When using the Service, Company may import data, including personally identifiable information, regarding Company’s Contacts (“Contact Data”). Company will not provide FieldRoutes or upload to Marketing Pro, or take any actions with respect to, any of Company Content or Contact Data for which Company does not have a lawful basis for processing, permissions, or consents in accordance with applicable privacy and data protection laws, nor information that is illegal or inappropriate. FieldRoutes reserves the right to remove illegal or inappropriate content. Company (and not FieldRoutes) is responsible for ensuring that Company meets all legal obligations (including notice, consent, and prescribed information and unsubscribe mechanisms) for sending communications to individuals in the jurisdictions where they reside. While Marketing Pro allows Company to manage and access consents and other Contact Data, Company acknowledges and agrees that Company, and not FieldRoutes, has sole responsibility for maintaining all records relating thereto. Company is solely responsible for determining whether Marketing Pro is suitable for use in light of any laws and regulations that govern Company’s entity, industry, or relationship with Company’s own Contacts, including but not limited to consumer protection, anti-spam, privacy, advertising, intellectual property or other laws. Company may not use Marketing Pro for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, the Canadian Competition Act, Canada’s Anti-Spam Legislation, any Canadian Human Rights Code, or other laws that apply to commerce. The guidelines below are examples of practices that may violate this Agreement or applicable law when generating or sending commercial electronic messages (“Emails”) through Marketing Pro:
Using non-permission based Email lists (i.e., lists in which each recipient has not explicitly granted permission to receive Emails from you by affirmatively opting-in to receive those Emails);
Using purchased or rented Email lists;
Using third party email addresses, domain names, or mail servers without proper permission;
Sending Emails to non-specific addresses (e.g., email@example.com or firstname.lastname@example.org);
Sending Emails that result in an unacceptable number of spam or Unsolicited Commercial Email (UCE) complaints (even if the Emails themselves are not actually spam or UCE);
Failing to include a working “unsubscribe” link in each Email that allows the recipient to remove themselves from your mailing list;
Failing to comply with any request from a recipient to be removed from your mailing list within 10 days of receipt of the request;
Disguising the origin or subject matter of any Email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any Email;
Failing to include in each Email your valid physical mailing address or a link to that information; and
Including “junk mail,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any Email that encourages a recipient to forward the Email to another recipient.
Third Party Data. Certain functions and features of Marketing Pro make use of data licensed from or owned by third parties (“Third Party Data”). FieldRoutes may charge incremental fees in connection with Company’s access to such Third Party Data. Company may use this Third Party Data solely in connection with Company’s use of Marketing Pro and for internal analysis, and Company shall not use any such Third Party Data for reproduction, sale, publication, or any other use in relation to any product or service to be provided to any third party, or any other commercial exploitation except as expressly consented to by FieldRoutes. Third Party Data remains the property of its owner, and Company will not acquire any proprietary rights in or to the Third Party Data, and Company acknowledges that the Third Party Data is a valuable commercial product, the development of which has involved the expenditure of substantial time and money. Company acknowledges that some Third Party Data is sourced from public documents or statistical calculations, is provided on an “as is, as available” basis with all faults and defects, and neither the owner/licensee of such Third Party Data nor FieldRoutes makes any warranties, express or implied, including without limitation, those of merchantability and fitness for a particular purpose. Further, neither owner/licensee of such Third Party Data nor FieldRoutes are responsible for errors, omissions, miscalculations, or misrepresentations of value. Any use of or reliance on Third Party Data by Company is at Company’s own risk.
Termination. Upon termination of Company’s Marketing Pro subscription in accordance with the Terms herein, FieldRoutes will allow Company to access Company Content for a limited period of thirty (30) days for the purpose of removing all FieldRoutes-provided content from Company Content. Subject to Section 9(C) above and FieldRoutes’ agreement that all FieldRoutes-provided content (or content derived from FieldRoutes-provided content) has been removed from Company Content, FieldRoutes will then permit Company to export Company Content from Marketing Pro.