Terms of Service
XTRAC LLC, a Fidelity Investments Company, its affiliates, subsidiaries, agents, independent contractors, designees and assignees (collectively “XTRAC,” “us” or “we”), is pleased to offer secure online storage for copies of certain electronic Files, Notes and Passwords (“your Content”), and convenient access to these items through an internet connection (“FidSafe®” or the “FidSafe® Service”).
Your use of FidSafe is governed by this Terms of Service Agreement (User Agreement). XTRAC may revise this User Agreement from time to time without prior notice. Please review the User Agreement each time you use FidSafe to keep up with the current terms as your use of FidSafe reaffirms your continuing agreement to the then-current User Agreement. This User Agreement is distinct from, and in addition to, any other agreements between you and Fidelity Investments (“Fidelity”), if any. Additionally, you acknowledge that non-Fidelity parties may provide portions of the FidSafe Service (“third-party service provider”) in accordance with the terms of this User Agreement.
By clicking the “I Agree” button, you agree to be bound by, and to act in accordance with, this User Agreement in order to use FidSafe. You certify that you are at least 18 years of age and are a US resident.
1. The FidSafe Account
You have elected to enroll in the FidSafe Service and to create a secure FidSafe Account (“Account”) that will only be accessible to you (“User”). The FidSafe Service may allow you, among other things, to store, upload, access, download, review, share and delete copies of your Content that have been uploaded into your Account via the internet in compliance with this User Agreement. In other circumstances, the FidSafe Service may allow you only to access, download and review copies of electronic files that have been shared with you by another FidSafe user. We make no effort to review your Content for accuracy, legality, non-infringement, or for any other purpose.
a. Account Username (“Unique ID”) and FidSafe Password
You access your Account with a Unique ID and password that you create in compliance with any requirements that we may specify from time to time. Your FidSafe password can be changed by you within FidSafe and we recommend that it be changed regularly.
b. Protection of FidSafe Password
You agree that you will be the only user of your specific UniqueID and FidSafe password, that you will not transfer or disclose your FidSafe password to any other person, and that you will be solely responsible for all usage of the FidSafe Service through such Account login whether or not authorized by you. If you believe that your FidSafe password may have been lost or stolen, or that someone has uploaded, viewed, downloaded, shared or deleted any of your Content from your Account without your authorization, or if you know of or suspect any unauthorized activity in your Account, you agree to immediately notify XTRAC.
c. Supplemental User Protection Measures
In order to facilitate access to Accounts in the event that you forget your Unique ID and password, new Users will be required to provide and verify their control of a phone number during the Account opening process through which they will receive either a voice call or an SMS message with a unique access code. This access code must be entered into the registration form in order to verify your device before gaining access to the Account for the first time. Once the device has been verified, you will have the option of using the device as a secondary authentication during login or to verify your identity during the password reset process. Existing users without a phone number on file with FidSafe will be asked to provide a phone number each time they log on. Existing users with a phone number on file with FidSafe will not be able to remove an existing phone number. They will only have the ability to edit or overwrite the existing number.
d. Sharing After Death
Your Content will only be accessible after your death if you enroll in the Sharing After Death feature of FidSafe and designate a person in accordance with the terms of this service. For more information about the Sharing After Death feature, please see the FidSafe FAQs – Sharing After Death.
You must provide all equipment and services necessary for you to access the internet and for you to upload your Content. We are not responsible for any fees, costs or expenses relating to your use, including uploading, viewing or downloading your Content (e.g., internet provider data charges, mobile phone data charges, etc.). FidSafe generally supports standard browser compatible file types. At certain times, access to FidSafe may not be available due to maintenance or circumstances beyond our control. We may discontinue or modify access to FidSafe at any time without prior notice, and you accept any modifications by your continued use of FidSafe.
a. Suspension/ Termination/ Deletion
We may suspend or terminate your access at any time if you violate any provisions herein or for any other reason, in our sole discretion, without prior notice to you. If your access is suspended or terminated by us, we reserve the right to permanently destroy your Content. If you wish to terminate your Account, you may do so. If you elect to terminate your Account, we will use reasonable efforts to shut off access to the Account and to destroy all copies of your Content in accordance with the terms of this User Agreement, subject to section 4 below. If you instruct FidSafe to delete any specific item of your Content, we will use reasonable efforts to delete the selected item(s), subject to section 4 below and internal processes and procedures related thereto. You agree that these steps may result in the loss of data or files within your Account and these files or data may not be recovered.
We reserve the right in our sole discretion to destroy anything which is deemed to be illegal, offensive, inappropriate, or in contravention of this User Agreement or its intent, without notice to you.
b. Audit Logs
FidSafe may create audit logs that track certain account activity such as information about the uploading, retrieval, sharing, or deletion of your Content. We own these audit logs that may include file names and other technical information, such as size or file type.
XTRAC and our third-party service providers take commercially reasonable steps to prevent the accidental loss, corruption or destruction of any successfully uploaded electronic files. You are responsible for ensuring that you have signed off from FidSafe when a session is complete. Currently FidSafe logs you out after a period of no activity. Your Content is encrypted while being transmitted into FidSafe and also while it is stored in your Account. As stated above, FidSafe contracts with a limited number of third-party service providers to furnish and support FidSafe, including the storage of your encrypted electronic files. The content of your electronic files remains encrypted and is not accessed, used or shared by FidSafe or its third-party service providers for any purpose, except at your direction, to scan for viruses or as required or permitted by law. Please see the FidSafe Security Policy, which is incorporated herein by reference, and the receipt of which you acknowledge, for further FidSafe Security information.
4. Responding to Legal Process
All information and electronic files are subject to valid legal process, as determined by XTRAC and its third-party service providers.
Examples of “legal process” include but are not limited to a subpoena, warrant, government request for information, forfeiture, or seizure, injunction, or restraining order. You generally will not be notified of the receipt of, or response to, such legal process unless required by law. You understand that copies of your Content (excluding passwords), associated communications and our audit logs may be reviewed and produced in response to legal process. XTRAC and/or our third-party service providers reserve the right, but do not assume the obligation, to investigate any issues related to your use of FidSafe and to report such issues to the authorities.
5. User Responsibilities
In signing up and in any future communications with us, you agree to provide true, accurate, current and complete information, as requested, and you agree not to misrepresent your identity. In addition, you agree that you are limited to the opening of only one Account.
We do not make any representation that any Content or use of FidSafe is appropriate or available for use in locations outside of the United States, and accessing FidSafe from locations where its contents or use is illegal is prohibited by XTRAC. Choosing to access FidSafe from foreign locations is done at your own risk.
You are solely responsible for your Content that is uploaded and stored in your Account and solely responsible for any of your Content that either you or someone to whom you have shared access views or downloads, including any locally-stored renderings or metadata that result from viewing/downloading. Your use of FidSafe is subject to all applicable local, state, federal and international laws and regulations. You acknowledge that by storing copies of your Content on FidSafe, no fiduciary relationship is created between you and XTRAC or its third-party service providers.
6. Prohibited Uses of FidSafe
- Not to use FidSafe for illegal or abusive behavior, including but not limited to gambling, or disseminating fraudulent or deceptive goods or schemes.
- Not to use FidSafe to store, download, or view:
– Any illegal materials, or files not allowed by this User Agreement, including commercial music and video files, code or material that violates the intellectual property rights of others, or personal health records.
– Any objectionable material including harassing, libelous, threatening, harmful, vulgar, pornographic, or obscene material.
– Any material to aid and abet a crime, or to otherwise violate any law or regulation, or to create a risk to a person’s or the public’s safety or health.
- Not to knowingly upload any virus, worm, “Trojan horse” or any other similar files.
- Not to use FidSafe to sell digital content or for any other commercial purpose including sending unsolicited communications, promotions or advertisements or spam, or the distribution of advertisement delivery software, without written authorization from FidSafe.
- Not to create more than one account for yourself, nor use any automated or other means to create accounts in bulk or to access the services other than by using our official interface and/or APIs.
- Not to use FidSafe for phishing, scamming, password robbery, spidering, harvesting or similar activities.
- Not to use FidSafe to damage any server, or any connected network, or to interfere with the service in any capacity whatsoever.
- To comply with applicable laws regarding the exportation and re-exportation of any data from the USA through FidSafe.
- Not to use FidSafe to falsify the origin of any electronic file.
- Not to access or attempt to access any FidSafe account without authority, including attempting to circumvent any security or authentication measure, or copy, modify, share, or display any of the account’s files from any such account.
7. Disclaimer of Warranties; Limits on Liability; Indemnification
XTRAC LLC is not providing advice of any kind, including but not limited to legal, tax, investment or insurance advice and nothing provided through the FidSafe Service should be construed otherwise, including any use of FidSafe by you in connection with your relationship with an affiliated or unaffiliated organization. Further, neither XTRAC nor its third -party service providers are intending to be a provider of personal health records.
DISCLAIMER OF WARRANTIES
- NO EXPRESS OR IMPLIED WARRANTIES ABOUT FIDSAFE ARE MADE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. FIDSAFE IS MADE AVAILABLE TO YOU “AS IS” AND “AS AVAILABLE” AND XTRAC AND ITS THIRD-PARTY SERVICE PROVIDERS DO NOT WARRANT THAT ANY DEFECTS OR INACCURACIES WILL BE CORRECTED.
- XTRAC AND ITS THIRD-PARTY SERVICE PROVIDERS DO NOT WARRANT THAT FIDSAFE WILL MEET YOUR NEEDS, OR THAT IT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. ALSO NO WARRANTY IS MADE THAT THE RESULTS OBTAINED FROM THE USE OF FIDSAFE WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH XTRAC WILL MEET YOUR EXPECTATIONS.
LIMITATION OF LIABILITY
- XTRAC AND ITS THIRD-PARTY SERVICE PROVIDERS WILL NOT BE LIABLE TO YOU OR ANYONE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, DIRECT, OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, TRADING LOSSES, GOODWILL, LOSS OF DATA, FILES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE, OR DAMAGES THAT RESULT FROM USE OR LOSS OF USE OF FIDSAFE AND THIRD-PARTY CONTENT, INCONVENIENCE OR DELAY). THIS IS TRUE EVEN IF XTRAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
- XTRAC AND ITS THIRD-PARTY SERVICE PROVIDERS WILL NOT BE LIABLE TO YOU OR ANYONE FOR ANY LOSS RESULTING FROM A CAUSE OVER WHICH THEY DO NOT HAVE DIRECT CONTROL. THIS INCLUDES FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES (INCLUDING TELEPHONE, CABLE AND INTERNET), UNAUTHORIZED ACCESS, MISUSE OF UNIQUE ID OR PASSWORD, VIRUSES, THEFT, OPERATOR ERRORS, SEVERE OR EXTRAORDINARY WEATHER (INCLUDING FLOOD, EARTHQUAKE, OR OTHER ACT OF GOD), FIRE, WAR, INSURRECTION, TERRORIST ACT, RIOT, LABOR DISPUTE AND OTHER LABOR PROBLEMS, ACCIDENT, EMERGENCY OR ACTION OF GOVERNMENT.
- IF YOU LIVE IN A STATE OR COUNTRY THAT DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
As a condition of using FidSafe, you agree to indemnify and hold XTRAC, its third-party service providers, each of their directors and officers, affiliates, subsidiaries, agents, independent contractors, designees and assignees (and their directors and officers) harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from your use of FidSafe, or from your violation of this agreement.
9. Intellectual Property
All trademarks and service marks on FidSafe belong to Fidelity or an affiliate except third-party trademarks and service marks, which are the property of their respective owners.
Unless XTRAC has agreed otherwise, links from another Web site to FidSafe must resolve to the top-level homepage of the FidSafe domain (e.g., www.FidSafe.com). In order to avoid confusion if a party does link from another Web site to the FidSafe top-level homepage, the party’s web site, and the link itself, may not suggest that XTRAC endorses, sponsors or is affiliated with any non-XTRAC web site, entity, service or product, and may not make use of any Fidelity trademarks or service marks other than those contained within the text of the link.
FidSafe is protected by copyright law. Accordingly, no one may copy, distribute, modify, post or frame-in the FidSafe Service, including any text, graphics, video, audio, software code, owner interface design or logos, without FidSafe’s written authorization.
If a party believes that its work has been copied in a way that constitutes copyright infringement, please provide Fidelity with the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright allegedly infringed
- A description of the copyrighted work that the owner claims has been infringed, or, if multiple copyrighted works are the subject of a single notice, a representative list
- An identification of the allegedly infringing material, and a description of where that material is located on FidSafe
- The owner’s address, telephone number, and email address
- A statement by the owner that the owner has a good faith belief that use of the disputed material in the manner complained of is not authorized by the copyright owner, its agent, or the law
- A statement by the owner, made under penalty of perjury, that the information the owner provides in the owner’s notice is accurate and that the owner is the owner of the allegedly infringed copyright, or that the owner is authorized to act on behalf of the copyright owner.
Our Agent for Notice of claims of copyright infringement can be reached here:
By mail: Tanya Sharko Courcey, Esq., Fidelity Investments, 155 Seaport Boulevard ZW9A, Boston, MA 02210
By phone: 617-563-2628
By email: CopyrightClaim@fmr.com
10. Miscellaneous Provisions
a. Effectiveness of this Agreement
This User Agreement is in effect upon your enrollment in the FidSafe Service and acceptance of your enrollment by XTRAC and at all times during your use of FidSafe. Unless otherwise required by law, either you or we may terminate this User Agreement at any time. The termination of this User Agreement will not terminate your obligations or our rights arising under this User Agreement before such termination. All applicable provisions of this User Agreement will survive termination by either you or us, including, without limitation, provisions related to intellectual property, warranty disclaimers, limitations of liability, indemnification, and the miscellaneous provisions.
b. Governing Law
This User Agreement and its enforcement are governed by the laws of the Commonwealth of Massachusetts, without regard to conflicts of law, and shall inure to the benefit of XTRAC’s successors and assigns, whether by merger, consolidation, or otherwise.
c. Dispute Resolution Program
Any dispute or claim arising out of or relating to this User Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Boston, Massachusetts, before a single arbitrator. The arbitration shall be administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules. The scope of discovery, shall be limited to reasonable requests that are proportionate to the amounts at issue and that have a likelihood of yielding relevant and necessary information to the claims or defenses at issue, considering the costs, burdens and business disruption that may be placed on the producing party. All aspects of the arbitration shall remain confidential, including all documents produced, information provided, evidence presented, and correspondence and pleadings. Judgment on the award may be entered in any court having jurisdiction. Parties are not precluded from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
XTRAC may assign this User Agreement to an affiliated entity, in whole or in part, without your prior consent; however, you may not assign or transfer this User Agreement. XTRAC may also assign or delegate certain of its rights and responsibilities hereunder to independent contractors or other third parties.
e. Entire Agreement
This User Agreement represents the sole and exclusive agreement between you and XTRAC regarding the FidSafe Service and merges and supersedes all previous and contemporaneous written or oral agreements and understandings regarding the subject matter hereof. If a court of competent jurisdiction deems any provision unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions will remain in full force and effect.
This Agreement is revised and effective January 2017.
©2018 FMR LLC. All rights reserved.