Last Updated: December 1, 2021
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’ 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.
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.
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.