Last Updated: January 27, 2022
THESE TERMS MAY BE UPDATED BY FOURKITES FROM TIME TO TIME. ACCESS TO AND/OR USE OF THE PLATFORM AFTER BEING PRESENTED WITH THE UPDATED TERMS CONSTITUTES COMPANY’S ASSENT TO THE UPDATED TERMS.
Capitalized terms have the meanings ascribed to them throughout these Terms.
1. Platform License. Subject to Company’s and its Authorized User(s)’ compliance with these Terms, FourKites hereby grants Company a revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Platform, solely through its Authorized Users, for the purposes described in these Terms. Such access and use are limited to Company’s internal business purposes in connection with freight transports handled directly or indirectly by Company for mutual customers of Company and FourKites. For purposes of these Terms: (i) “Platform” means FourKites’ patented (U.S. Patent No. 11,017,347 and U.S. Patent No. 11,195,139) proprietary cloud-based, online real-time predictive supply chain visibility platform, APIs, and mobile and/or device applications, which, among other things, processes data provided by shippers, carriers, telematics providers, truckers, brokers and other participants within the logistics and transportation industry to better plan, manage, and track freight location (i.e., “FourKites Visibility Cloud”) and/or manage yards (i.e., “Dynamic Yard”) and otherwise communicate with one another and (ii) “Authorized Users” means Company’s and its affiliates’ employees, consultants, contractors, and agents who are authorized by Company to access and use the Platform under the rights granted to Company pursuant to these Terms.
2. Termination and Survival. Notwithstanding anything to the contrary herein, FourKites may terminate Company’s and/or any Authorized User(s)’s access and use of the Platform immediately upon written notice to Company in the event that Company declares bankruptcy or Company or any Authorized User breaches any material term set forth in these Terms and Company fails to cure such breach within 30 days from the date of receipt of written notice thereof. Upon termination of these Terms, Company shall, and shall inform is Authorized Users to, discontinue use of the Platform and return, remove, or destroy (with written certification) FourKites’ Confidential Information. Sections 3, 4, 6, 7, 8 and 10 of these Terms shall survive any termination or replacement of these Terms.
3. Intellectual Property.
(a) FourKites Materials. All right, title, and interest in and to the Platform (including all updates, customizations, and/or modifications thereto) and any associated documentation or other materials provided in or with the Platform (“Documentation”), including all intellectual property rights therein, (individually and collectively, the “FourKites Materials”) are and will remain with FourKites and its relevant licensors. The structure, organization, and code of the Platform and the products and services provided by FourKites are the valuable trade secrets and Confidential Information of FourKites, its licensors, and/or its or their affiliates.
(i) Company Data. Company, as a carrier, broker, freight forwarder or other participant within the logistics and transportation industry, collects (or has collected for it by its service provider(s)) load data and telematics and/or other location data, including GPS position, EDI status updates, dispatching data, truck number, appointment times driver cellphone numbers and other data (as applicable) concerning freight transports handled directly or indirectly by Company for its customers, including mutual customers of Company and FourKites (“Load Data”). Additionally, Company and/or its Authorized Users may input other data into the Platform to utilize the Platform features including inviting carriers to join the Platform, setting up appointment times with other FourKites customers and sending instant messages to other FourKites customers, in connection with freight transports handled by Company for mutual customers of Company and FourKites (such data and information, together with the Load Data, collectively “Company Data”). The exchange and processing of Company Data shall be governed by the General Terms and Conditions for Data located at https://www.fourkites.com/legal/terms-and-conditions-telematics-data/ except for certain Company Data which may be governed by a previous agreement executed by Company and FourKites and, for that Company Data only, such previous agreement shall govern that Company Data (the General Terms and Conditions for Data and each previous agreement for the exchange and processing of Company Data, individually and collectively, “Company Data Agreement”).
(c) General Learning. FourKites keeps track of Platform usage and performance data to better serve its customers and improve customer experience. Company agrees that FourKites may reuse all general knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) related to Company’s and its Authorized Users’ use of the Platform.
(d) Feedback. Company acknowledges and agrees that any suggestions, improvements, feedback, and/or bug fixes relating to the Platform that Company or its Authorized Users may suggest from time to time (“Feedback”) shall be deemed to be owned in full by FourKites, that FourKites may use any or all such Feedback without restriction, and that, to the extent Company has any rights to the Feedback, Company hereby assigns such rights to FourKites at no cost to FourKites.
(e) Reservation of Rights. Except as expressly set forth in these Terms, no other rights or licenses, express or implied, are granted under these Terms by either party. No ownership of any intellectual property rights of either party is assigned or transferred to the other party, except as expressly provided herein.
(f) Restrictions; Suspension. All use of the Platform by Authorized Users will be considered use by Company and Company shall be fully liable for Authorized Users’ compliance with these Terms. Company shall notify FourKites promptly of any unauthorized access or use of the Platform that violates these Terms. Company shall not, and shall not permit its Authorized Users to, directly or indirectly reverse engineer, attempt to derive the source code of, copy or reproduce all or any portion of the FourKites Materials, whether electronically, mechanically or otherwise, in any form including, but not limited to, copying presentation, look and feel, style, or organization. Company shall use, and shall cause its Authorized Users to use, the FourKites Materials solely for their intended purposes and shall not use, and shall not permit its Authorized Users to use, the FourKites Materials for the benefit of any third party except as specifically contemplated under these Terms. Without limiting the foregoing, Company hereby acknowledges that the Platform is intended only to allow shippers, truckers, brokers and other participants within the logistics and transportation industry to track freight location, manage yards, and otherwise communicate with one another and that the Platform is not intended for storage or use of any data not related to such purpose, including, without limitation, social security numbers, financial account numbers, health information, driver’s license, passport or visa number, credit card data or any special categories of personal data (“Prohibited Data”). Company and its Authorized Users will not input any Prohibited Data into the Platform. Company will not, and will not permit its Authorized Users to, use the FourKites Materials: (i) in violation of any applicable law; (ii) in a manner such that any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information are entered into the Platform; or (iii) in violation of the Documentation and the acceptable use policy located at https://www.fourkites.com/acceptable-use-policy or other policy posted at FourKites’ website or otherwise made available to Company from time to time. Company shall be solely responsible for maintaining all passwords and access codes to the Platform and/or any dashboard related thereto and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes. Any other software or services that are included in the Platform and are not proprietary to FourKites are licensed subject to the applicable license, all of which are incorporated herein by reference if identified in any Documentation or otherwise made available to Company. FourKites shall have the right to immediately suspend access to the Platform if Company’s or its Authorized Users’ use or access of the Platform results in a risk of loss or damage to the Platform, FourKites’ other systems, or the data or property of any other FourKites licensee or supplier.
4. Confidentiality. Company agrees that, as between Company and FourKites, the FourKites Materials (which include, for clarity, the Platform and the Documentation) is the confidential information of FourKites. Company will: (a) protect the FourKites Materials using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care; (b) limit access to the FourKites Materials to Authorized Users who are bound by confidentiality and non-use obligations just as protective of the FourKites Materials as these Terms; and (iii) except as set forth in these Terms, will not disclose the FourKites Materials to any third parties without FourKites’ prior written. Upon termination or expiration of these Terms or upon request of FourKites, Company will cease accessing and/or using the Platform (and ensure that its Authorized Users do the same) and return to FourKites or destroy (and certify such destruction in writing) all other FourKites Materials and any and all copies or extracts thereof. Company shall not be obligated under this Section with respect to data or information Company is required to disclose by law or by order of a court of competent jurisdiction, provided that Company will provide prompt notice of such disclosure and comply with any protective order imposed on such disclosure. This Section shall survive any termination of the Agreement.
5. Representations and Warranties.
(a) Mutual. Each party represents and warrants that: (i) it has all corporate authority to execute and perform these Terms; (ii) it is duly organized and in good standing under the laws of the jurisdiction of its organization; (iii) it will comply with all applicable laws and regulations in carrying out its responsibilities and exercising its rights hereunder; and (iv) it is not a party identified on any governmental or export exclusion list.
(b) FourKites represents and warrants that, consistent with industry standards, it will maintain appropriate administrative, physical, and technical safeguards for protecting the security of all non-public information entered into the Platform.
(c) DISCLAIMER. EXCEPT AS EXPLICITLY SET FORTH IN THESE TERMS, NEITHER FOURKITES NOR ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, OR LICENSORS MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (I) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, (II) WARRANTIES REGARDING PLATFORM UPTIME OR DOWNTIME, OR (III) WARRANTIES AS TO THE ACCURACY OF RESULTS THAT MAY BE OBTAINED BY COMPANY OR ITS USERS OR CUSTOMERS BY ENTERING INTO THESE TERMS.
6. Limitation on Liability. FOURKITES SHALL NOT BE LIABLE TO COMPANY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THESE TERMS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN ADDITION, THE AGGREGATE LIABILITY OF FOURKITES TO COMPANY FOR ANY CLAIM RELATING TO THESE TERMS, THE PLATFORM, OR OTHERWISE SHALL NOT EXCEED $10,000.00 USD. COMPANY ACKNOWLEDGES THAT THE PLATFORM MAY BE DOWN FROM TIME TO TIME FOR ROUTINE MAINTENANCE AND/OR OTHER REASONS. IN NO EVENT SHALL FOURKITES BE LIABLE FOR (A) ANY PLATFORM DOWNTIME, ERRORS WITHIN OR CAUSED BY THE PLATFORM OR OTHER FAILURES IN PERFORMANCE OF THE PLATFORM, (B) CLAIMS ARISING OUT OF COMMUNICATIONS INITIATED BY COMPANY OR ANY THIRD PARTY THROUGH OR WITHIN THE PLATFORM, OR (C) ANY MISINFORMATION AND/OR FRAUD COMMITTED BY ANY USER OF THE PLATFORM.
7. Governing Law. These Terms shall be construed and governed by the laws of the State of Illinois, without reference to conflict of law principles. Any dispute or claim arising out of or in connection with these Terms or the performance, breach or termination thereof, shall be submitted to the competent court in Chicago, Illinois without prejudice to parties’ right to appeal or cassation. This Section shall not prevent either party from seeking immediate injunctive relief in any court of competent jurisdiction.
8. Export Law Assurances. Company shall not use or otherwise export the the FourKites Materials except as authorized by U.S. law. In particular, but without limitation, the FourKites Materials may not be exported (a) into (or to a national resident of) any U.S. embargoed country or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders. By using the FourKites Materials, Company represents and warrants that it and each of its Authorized Users is not located in, under control of, or a national or resident of any such country or on any such list.
9. Marketing Materials. FourKites may list Company as a user of the Platform on FourKites’ website and/or in marketing materials. In addition, FourKies may reproduce and publish in the media Company’s trademarks, logos, service marks, trade names and similar designations (collectively, “Trademarks”) in accordance with any Company brand guidance provided by Company to FourKites. All goodwill from the use of the Company’s Trademarks shall inure to the benefit of the Company.
10. Miscellaneous. Each party shall pay its own costs and expenses in connection with these Terms and its activities hereunder. These Terms, together with the forms and policies referenced herein (all of which are hereby incorporated by reference excluding the Company Data Agreement), supersede all prior written or oral agreements between the parties regarding the subject matter hereof (including any earlier version replaced by this version). The relationship between the parties under these Terms is that of licensor and licensee, and neither shall be, nor represent itself to be, the joint venturer, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. These Terms shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by either party without the advance written consent of the other party, except in the case of assignment to an entity acquiring substantially all or all of a party’s assets, equity, or business and assuming all of that party’s obligations and liabilities hereunder. Any notice pursuant to these Terms shall be deemed effective when delivered in person or one day after sending such notice by reputable overnight courier with confirmation of next-day receipt, in each case to the receiving party’s address as provided to the other or to such updated address as such party may notify the other party. Copies of any notice to FourKites must be sent to FourKites’ general counsel. If any provision of these Terms is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of these Terms is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.