Last updated: 2023-05-29
This End-User License Agreement and Terms of Service (“Agreement”) is a legal agreement for the use of products and services provided by Fox and Geese LLC ("FOX", "we", or "our"), a Nevada limited liability corporation, located at 5160 SW Dogwood Lane, Portland, OR 97225, United States of America. Additionally, FOX operates under the trade names Versionista and Fluxguard, and these names may appear in connection with certain products or services. FOX products and services include FathomL.com ("Fathom"), Lexicon.FathomL.com ("Fathom Lexicon"), Fluxguard.com ("Fluxguard"), DeepDiveDuck.com ("Deep Dive Duck"), NeedleX3.com ("Needle X3"), Versionista.com ("Versionista"), and any other websites, web-based applications, other materials, tools, products, services, or documentation provided by FOX (collectively, “Platform Services”).
By accessing or using Platform Services, you agree to be legally bound by this Agreement. If you are using Platform Services on behalf of a business or employer (you and such business or employer, collectively “User,” “you,” or “your”), you are accepting this Agreement on its behalf, and that business or employer agrees to be bound by this Agreement. If User does not agree to the terms of this Agreement, User may not use or access Platform Services.
We prohibit use of Platform Services by certain organizations, including any government, government instrumentality, academic institution, research center, or affiliated academic organization from the following countries: Cuba, Belarus, Burma, Eritrea, Iran, Pakistan, the People’s Republic of China, Russia, Saudi Arabia, Syria, Tajikistan, Turkmenistan, Venezuela, and the Democratic People’s Republic of Korea. Furthermore, we prohibit all use of Platform Services by any individual or organization from EAR, ITAR, or OFAC sanctioned, embargoed, red-flagged, or prohibited countries or destinations. If you or your organization fall into any of the categories referenced in this paragraph, you are hereby prohibited from utilizing our products or services.
Please read this Agreement carefully. Sometimes additional terms or product requirements (such as those related to certain Platform Services configuration options) may apply. If additional terms or conditions are available with or applicable to Platform Services or any component thereof, then those additional terms become part of your agreement with FOX.
“Applicable Laws” means any applicable federal, state, local, or foreign (including transnational) law, rule, regulation, directive, administrative rule, or judicial decree (including, without limitation, laws related to unauthorized access of computers or networks, damage to computers or networks, copyrights, trademarks or trade secrets, or the privacy of individuals).
“Crawl” means, by automated methods, to use or navigate through an Online Service (as defined below) to create and make available Saved Information (as defined below).
“Online Service” means any website or other Internet properties, computer, computer network, or service available online, whether operated by User, FOX, or a third party.
“Saved Information” means all information (including without limitation text, data, images, or any other content) accessed, copied, downloaded, saved, or acquired from any Online Services through Platform Services or otherwise made available to User through Platform Services.
Provided that you pay all applicable fees and other charges, FOX hereby grants you a personal, worldwide, royalty-free, non-assignable, non-sublicensable, and non-exclusive limited license to access and use Platform Services as expressly permitted in this Agreement. This license is for the sole purpose of enabling you to use and enjoy the benefits of Platform Services as provided by us.
User acknowledges that it is obtaining only a limited right to use Platform Services and that irrespective of any use of the words “purchase”, “sale,” or similar terms, no ownership rights are transferred to User under this Agreement. User agrees that FOX (or its suppliers) retains all rights, title, and interest (including all intellectual property rights) in and to all Platform Services technology, code, materials, and know-how, and reserves any licenses not specifically granted in this Agreement. User acknowledges and agrees that it has no right to obtain a copy of the software behind any FOX product or resulting from any FOX service and that FOX at its option may make updates, bug fixes, modifications, or improvements to Platform Services from time-to-time.
User may not interfere with, reverse engineer, decompile, disassemble, modify, or create derivative works of Platform Services. You may not use Platform Services to build a competitive product or service or copy its features or user interface.
Platform Services use proprietary technology to crawl user-specified online services on your behalf as directed by you. You may not crawl online services or use Platform Services in a manner that violates any applicable law, use restrictions, or third-party rights, or bypasses any restrictions on any online services. You are solely responsible for ensuring your use of Platform Services complies with all applicable laws and restrictions. Misuse of crawling technology, Platform Services, or saved information may result in civil or criminal liability.
You may not use Platform Services to defraud, manipulate, or negatively impact any online services or their operators, including advertising networks, polling, surveys, or voting systems.
You may not use Platform Services in a way that negatively impacts the performance or stability of any online services or could be construed as a denial of service attack.
You will not use Platform Services to:
Unless authorized by the operator of the relevant online service, you must follow any directives (including those in robots.txt files), technical measures, restrictions, instructions, demands, letters, emails, warnings, court orders, or any other indicators reasonably known regarding crawling of any online services or information relating to individuals. If you bypass any of the foregoing, you represent and warrant that you have the necessary licenses and consents to do so. You agree to indemnify, defend, and hold harmless FOX and its affiliates, directors, managers, shareholders, members, officers, employees, agents, contractors, and representatives from any third-party claims, demands, or proceedings related to your actual or alleged breach of this representation and warranty.
By using Platform Services, you represent and warrant to FOX that (i) you are permitted to crawl each online service you direct Platform Services to crawl, and (ii) you are authorized, or legally permitted, to create and use saved information. If you are no longer authorized or permitted to crawl any online service or create or use saved information, you must immediately cease such activities and, if applicable, destroy the saved information.
We may modify your settings or suspend or stop providing Platform Services to you with or without notice if you do not comply with this Agreement or our policies, if we are investigating suspected misconduct, or for any other reason.
Using Platform Services does not grant you ownership of any intellectual property rights in the Platform Services or the content you access through it, including Saved Information ("Content"). Unless otherwise agreed between you and the provider of an applicable Online Service, Saved Information remains the property of the respective Online Service. You may only use Content from Platform Services as permitted by its owner or as allowed by law. These Terms do not grant you the right to use any branding or logos used in Platform Services, including the FOX name and logo. Do not remove, obscure, or alter any legal notices displayed in or along with Platform Services.
Platform Services display some Content that is not our own, such as Content from you or third parties, including Saved Information (collectively, "Third Party Content"). We are not responsible for, and you waive all of our liability with respect to, Third Party Content. The individual or entity that makes Third Party Content available to you via Platform Services or otherwise is solely responsible for it. We may review Third Party Content to determine whether it is illegal or violates our policies, and we may remove or refuse to display Third Party Content that we believe violates our policies or the law. However, we do not generally pre-review content, and we are not obligated to do so.
You may submit or save information, including settings, URLs, and Saved Information, to or through Platform Services ("User Information"), and in doing so, you must follow this Agreement and the rules and policies referenced herein. You retain ownership of any intellectual property rights that you hold in User Information.
When you upload, submit, save, or otherwise share User Information to or through Platform Services, you grant us (and those we work with) a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, host, store, reproduce, or modify User Information for the limited purpose of operating Platform Services (including investigating suspected misconduct).
We may provide you with support, managed services, or professional services (collectively, “Professional Services”). These Professional Services may be subject to an additional fee agreed to between the parties. These Professional Services may include, without limitation, setup, configuration, customization, feature development, integration, and management of Platform Services or other FOX products and services. Professional Services may also include software engineering, product management, project management, account management, feature ideation, business process discovery, product brainstorming, and report writing. Regardless of the nature of the Professional Services, we will own all right, title, and interest in and to, including the right to re-use, all output and work product while or as a result of providing such Professional Services.
Professional Services and associated product uses may or may not be documented in Statements of Work.
FOX aims to provide a high level of availability and performance for Platform Services. This Service Level Agreement ("SLA") outlines the service levels that FOX commits to its Users regarding Platform Services.
FOX will use commercially reasonable efforts to ensure that Platform Services will be available at least 99.5% of the time in any given calendar month ("Service Availability Commitment"). Service Availability is defined as the ability of Users to access and use Platform Services, excluding any downtime due to scheduled maintenance or factors beyond FOX's reasonable control, including but not limited to:
FOX may offer improved SLAs, including higher Service Availability Commitments and faster response times, as part of mutually agreed-upon enterprise engagements. Such improved SLAs will be subject to separate negotiation and agreement between FOX and the enterprise User.
If FOX fails to meet the Service Availability Commitment in a given calendar month, the User may be eligible to receive service credits. To be eligible for service credits, the User must notify FOX within 30 days of the end of the calendar month in which the Service Availability Commitment was not met. Service credits will be applied to future billing cycles and will not be provided as cash refunds. The maximum service credit that a User may receive in a given calendar month will not exceed 10% of the User's monthly fees for Platform Services.
FOX will provide support for Platform Services through email and other support channels, as specified in the user documentation or on the FOX website. FOX will use commercially reasonable efforts to respond to support requests within 24 hours, excluding weekends and holidays.
By accessing or using Platform Services, you agree to this SLA and acknowledge that it forms an integral part of the Agreement between you and FOX.
If User elects to provide any suggestions, recommendations, or other feedback to FOX (collectively, “Feedback”), User hereby grants FOX a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however FOX will not identify User as the source of the Feedback and Feedback will not reference or rely on User Information. Nothing in this Agreement limits FOX’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise. You are providing the Feedback “as is” without warranty of any kind. FOX’s use of Feedback shall be at FOX’s sole and exclusive risk, and you shall have no liability whatsoever in connection with Feedback.
The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement.
In connection with your use of Platform Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications, for example, by clicking on the “unsubscribe” link in marketing emails. Please be aware that there may be a brief period before we are able to process your opt-out.
Some of Platform Services may be available on mobile devices, which may cause you to incur data charges with your wireless provider. Please be aware that we have no control over these charges, and if you do not wish to be charged, you should stop using the mobile features.
You need an account in order to use Platform Services. If you create your own account, you agree that all registration information you give us will be accurate and current. If your account has been provided to you by an administrator, such as your employer, different or additional terms may apply and your administrator may be able to access or disable your account. You will timely notify us of any changes to any of the foregoing information. You are responsible for controlling access to any PCs, mobile devices, or other endpoints that you allow to store your Platform Services password, or on which you enable a “Remember Me” or similar functionality (“Activated Device”). Accordingly, you agree that you will be solely responsible for all activities that occur under your Platform Services account, including the activities of any individual with whom you share your Platform Services account or an Activated Device.
You agree to pay all amounts owed to us for Platform Services under any terms, policies, or other written or electronic agreement we may have in place, and we may require you to maintain valid credit card or other payment account information with us in order to use Platform Services. Any failure to maintain valid, up-to-date payment information with us or to keep your payments current will constitute a material breach of these terms, for which we may suspend or terminate your access to Platform Services immediately without notice. Interest will be charged on all unpaid delinquent amounts at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lesser. You agree to reimburse us for all collection agency fees, attorneys’ fees, and other costs we may incur to collect delinquent amounts you owe to us.
Unless otherwise agreed in writing, no refunds for subscriptions or other purchases are provided.
Payments for Platform Services are processed through Stripe, our third-party payment processor. Customers subscribing to monthly or annual plans will have their payments automatically charged through Stripe on a recurring basis using the provided credit card or other payment methods supported by Stripe.
In certain cases, customers may arrange for alternative payment terms, such as quarterly or annual invoicing. These "custom invoicing" arrangements allow customers to make payments through various methods, including credit cards, ACH transfers, or other agreed-upon methods. To set up a custom invoicing arrangement, please contact our support team to discuss available options and terms.
Please note that customers are responsible for keeping their payment information up-to-date and ensuring timely payments for continued access to Platform Services. Failure to maintain valid, up-to-date payment information or to keep payments current will constitute a material breach of these Terms.
All fees and charges for Platform Services are exclusive of any applicable taxes or duties. As a business-to-business (B2B) service provider, FOX may apply the reverse charge mechanism for Value Added Tax (VAT) purposes. It is the responsibility of the User to account for VAT or other applicable taxes in their country or jurisdiction.
Users are responsible for any taxes, duties, or other governmental charges that may be applicable to their use of Platform Services, unless we are expressly required to collect such taxes by law. Users must provide any necessary tax identification information upon request to comply with tax regulations.
All payments for Platform Services must be made in United States Dollars (USD) unless otherwise agreed upon in writing.
In the event of late payments, we reserve the right to charge a late fee at a rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is lower. Users are responsible for any fees, charges, or penalties imposed by their bank or credit card company, including chargeback fees. If a chargeback occurs, the User may be required to cover the chargeback costs, in addition to any outstanding balances on the account.
FOX reserves the right to change payment terms, including payment methods, fees, and charges, at any time and without prior notice. Users will be notified of any significant changes that may affect their accounts or payment obligations. Continued use of Platform Services after any changes to payment terms constitutes acceptance of the new terms.
If you are a copyright owner or its agent and believe that any content residing on or accessible through Platform Services infringes upon your copyrights, you may submit a notification under the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (the “Designated Agent”) with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
Please also note that the information provided in a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content. After removing material in response to a valid DMCA notice, we will notify the user responsible for the allegedly infringing material that we have removed or disabled access to the material. We may terminate, under appropriate circumstances, the accounts of users who repeatedly engage in alleged copyright infringement, and we reserve the right, in our sole discretion, to terminate the account of any user for actual or apparent copyright infringement.
If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with us by providing the following information to the Designated Agent at the address below:
Upon receipt of a valid counter-notification, we will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If we do not receive any such notification within ten (10) days, we may restore the material to Platform Services.
The contact information for our Designated Agent is:
Attention: Copyright Agent
Fox and Geese LLC
5160 SW Dogwood Lane
Portland, Oregon 97225
If you believe that any of your intellectual property rights other than copyrights have been infringed, please email us at firstname.lastname@example.org. Without limiting any other rights of ours in this Agreement (including any right to suspend your use of Platform Services), we reserve the right, in our sole and absolute discretion, with or without notice, to suspend or terminate any user who infringes the intellectual property rights of FOX or others, and/or to remove, delete, edit, or disable access to such person’s content. You agree that we have no liability to you for any action taken under this section.
We may add or remove functionalities or features to Platform Services, and we may suspend or stop providing Platform Services, or any part thereof, altogether, at any time, without any notice or liability. You can stop using Platform Services at any time. We may also stop providing Platform Services to you, or add or create new limits to Platform Services, at any time.
We reserve the right to pause, modify, or stop monitoring any Online Service, page, or content at any time for any reason. We reserve the right to change the terms, conditions, prices, availability, credits, or any other aspects of our subscription plans, including free plans, at any time and without notice. FOX reserves the right to delete or modify any Saved Information, content, data, or materials associated with User’s account, including the account itself, and any associated settings, configurations, or subscriptions, at any time and for any reason.
Upon termination of this Agreement for any reason, User must destroy all copies of Platform Services materials in any format or media in their possession or control.
This section and the following sections shall survive any termination of this Agreement (along with any other provisions of this Agreement that by their nature are intended to survive termination): DEFINITIONS, INTELLECTUAL PROPERTY, PAYMENTS AND REFUNDS, INDEMNIFICATION, DISCLAIMERS, LIMITATION OF LIABILITY, DISPUTE RESOLUTION, ABOUT THIS AGREEMENT, and GOVERNING LAW.
Neither party shall be liable for any failure or delay in performing its obligations under this Agreement due to events beyond its reasonable control, such as Force Majeure Events. In the event of a Force Majeure Event, the affected party shall promptly notify the other party and make reasonable efforts to mitigate the impact of the Force Majeure Event. The performance of the affected party's obligations shall be suspended during the period that the Force Majeure Event continues, and the time for performance shall be extended for a period equal to the duration of the Force Majeure Event. If the Force Majeure Event continues for more than thirty (30) days, either party may terminate this Agreement upon written notice to the other party.
You agree to indemnify, defend, and hold harmless FOX, its affiliated companies, and its and their respective managers, directors, members, shareholders, officers, employees, representatives, partners, and contractors from and against all claims, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees), resulting from or arising out of any breach of this Agreement by User, any creation, storage, use, deletion, or distribution of Saved Information, any breach of User’s representations and warranties in this Agreement, or any Crawling of any Online Services in violation of applicable Use Restrictions, including robots.txt directives.
FOX is committed to ensuring the security of User Information and Saved Information. We implement appropriate technical and organizational measures to protect the confidentiality, integrity, and availability of the data provided by the User while using Platform Services. These measures include data encryption, secure storage, network security, and access controls.
It is the User's responsibility to maintain the security of their account credentials and devices used to access Platform Services. FOX cannot be held responsible for any unauthorized access or data breach resulting from the User's failure to protect their account credentials or devices.
By using our Platform Services, you agree to do so at your own risk. We provide the Platform Services "as is" without any warranties, either express or implied. FOX does not guarantee an uninterrupted, non-infringing, secure, error-free, bug-free, or virus-free experience, nor do we promise to fix any detected issues. We are not responsible for any loss of data or unauthorized access to or use of Platform Services.
You are solely responsible for determining if your use of Platform Services complies with any applicable laws or use restrictions, whether it may damage or interfere with any Online Services, or if it may result in claims or demands by any third party.
If the Saved Information contains personal information subject to Applicable Laws, you are solely responsible for complying with those laws. FOX only acts as a service provider for you, including when we provide additional services such as Professional Services, platform configuration, and other assistance in using Platform Services.
Although we strive to crawl and monitor sites on your behalf, we cannot guarantee that we will accurately record changes to monitored content, monitor Online Services, or preserve, maintain, or make available any Saved Information, content, or derivative materials obtained from Online Services.
You, your heirs, successors, and assigns hereby forever irrevocably release, discharge, and hold harmless FOX and Released Parties from any liabilities arising out of your or a third party's conduct related to the use of Platform Services.
To the extent permitted by law, FOX and its affiliates are not responsible for lost profits, revenues, or data, financial losses, or indirect, special, consequential, exemplary, or punitive damages, even if advised of the possibility of such loss or damage.
To the extent permitted by law, the total liability of FOX and its affiliates for any and all claims and damages under this Agreement or relating to your use of Platform Services is limited to the amount you paid us to use the Platform Services.
In all cases relating to providing you Platform Services, FOX and its affiliates will not be liable for any loss or damage that is not reasonably foreseeable or that is due to events outside of our reasonable control.
Except for changes made unilaterally by FOX, any modification or amendment to this Agreement must be in writing and signed by authorized representatives of both parties. Any material changes to this Agreement will be effective only upon mutual agreement of both parties. If you do not agree to any proposed modification or amendment, you must notify FOX in writing, and the existing Agreement shall continue to govern unless and until terminated by either party.
In the event of any dispute, claim, or controversy arising out of or relating to this Agreement, the parties shall first attempt to resolve the matter amicably through good faith negotiations. If the parties are unable to resolve the dispute through negotiations within thirty (30) days, either party may submit the dispute to binding arbitration.
The arbitration shall be administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be held in Washington County, Oregon, unless otherwise agreed by the parties. The arbitrator(s) shall be selected by mutual agreement of the parties or, failing such agreement, in accordance with the AAA rules.
The arbitrator(s) shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, the issuance of an injunction. The prevailing party in any arbitration shall be entitled to recover its reasonable attorneys' fees and costs from the other party.
By agreeing to arbitration, the parties understand and agree that they are waiving their rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle their disputes. This arbitration provision shall survive the termination of this Agreement.
Notwithstanding the foregoing, nothing in this section shall prevent either party from seeking injunctive or other equitable relief from a court of competent jurisdiction to prevent irreparable harm or to preserve the status quo, pending the outcome of arbitration.
We may modify this Agreement or any additional terms that apply to a specific feature of Platform Services for any reason. You should look at this Agreement regularly and the “Last updated” date at the beginning of this Agreement. We’ll use reasonable efforts to give you notice of these modifications. By continuing to use Platform Services or a specific feature of Platform Services after we make these modifications, you agree that you will be subject to the modified Agreement or the applicable additional terms. If there is a conflict between this Agreement and any additional terms for a specific feature of Platform Services, the additional terms will control solely with respect to that feature.
You may not assign or delegate your rights or obligations relating to this Agreement or your Platform Services account without prior written consent from FOX. We may assign these terms or assign or delegate any of our rights or obligations at any time. These Terms control the relationship between FOX and User. They do not create any third-party beneficiary rights.
Any failure by FOX to enforce any of the rights specified in this Agreement shall not constitute a waiver of such right. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the remaining provisions shall retain their full force and effect.
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter.
This Agreement, and any disputes arising from or relating to the interpretation, performance, or breach of this Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, United States of America, without regard to its conflict of law principles. The parties agree to submit to the exclusive jurisdiction of the state and federal courts located in the State of Oregon for the resolution of any legal disputes arising from or relating to this Agreement.
The section headings used herein are for convenience only and shall not be given any legal significance.
Any rights not expressly granted herein are reserved.