Pilot Terms of Subscription and Services
These Pilot Terms of Subscription and Services are applicable to any Subscription Order Form between FourKites, Inc., a Delaware corporation, with principal offices at 500 W. Madison St., Suite 3300, Chicago, IL 60661 (“FourKites”) and the Company identified therein to pilot the Platform (as defined herein) (the “Subscription Order Form”). These Pilot Terms of Subscription and Services along with the Subscription Order Form are referred to herein as the “Agreement”.
- License; Related Services. Subject to the terms and conditions of the Agreement, during the Term, FourKites grants Company a non-exclusive, non-transferable, limited, non-sublicensable license to use the Platform solely for purpose of evaluating the Platform’s capabilities. “Platform” means FourKites’ cloud-based, online software platform which, among other things, allows shippers, truckers, brokers and other participants within the logistics and transportation industry to track freight location and otherwise communicate with one another; provided Platform (for purposes of the Agreement) shall be limited to the product features described in the Subscription Order Form. In addition, FourKites agrees to provide to Company, the implementation and related services described in the Subscription Order Form (the “Services”).
- Fees. In consideration of FourKites making the Platform available and providing the Services, Company shall pay to FourKites the fees specified in the Subscription Order Form (the “Fees”) at the times specified therein. FourKites may suspend access to the Platform and/or provision of the Services in the event that any Fees are thirty (30) or more days overdue.
- Term. The Agreement shall continue in full force during the Term specified in the Subscription Order Form unless terminated earlier as set forth herein (the “Term”). Either party shall be entitled to terminate the Agreement immediately upon written notice to the other party in the event that the other party declares bankruptcy or breaches any material term set forth in the Agreement and fails to cure such breach within thirty (30) days from the date of receipt of written notice thereof. Upon the expiration or termination of the Term, all loads created in the Platform will cease tracking and user access will be disabled. Should Company be interested to use the Platform for purposes beyond the scope expressly authorized by the Agreement, then Company must enter into a separate agreement with Company under terms to be agreed upon by the parties. Any use of the Platform, beyond the scope expressly authorized by the Agreement without an appropriate authorization from Company is in violation of copyright and patent laws and other intellectual property laws. Sections 4-8 of these Pilot Terms of Subscription and Services shall survive any expiration of the Agreement.
- Intellectual Property.
- Ownership. All trademarks, patents, copyrights and other intellectual property rights owned by either party shall continue to be owned solely by such party, and, except as expressly set forth herein, nothing in the Agreement shall be deemed to convey any rights to any such intellectual property to the other party. For purposes of clarity, (i) Company shall remain the sole owner of all of its trademarks and related intellectual property, and (ii) FourKites shall remain the sole owner of all of its trademarks, the Platform (including all updates, customizations, and/or modifications thereto) and all related intellectual property. In addition, all software, designs, and/or other intellectual property which are created by FourKites outside the scope of the Agreement and/or which are generally applicable to FourKites’ business and which do not include any confidential information of Company shall remain solely owned by FourKites. Company acknowledges and agrees that any suggestions, improvements, feedback and/or bug fixes relating to the Platform that Company 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.
- General Learning, Aggregate Data. FourKites keeps track of Platform service 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 use of the Platform during the Term or acquired during provision of the Services. Company agrees that FourKites shall have the right to anonymize and aggregate Company Data (defined below) (such anonymized and aggregated data, “Aggregate Data”) to prepare reports, studies, analyses and other work product resulting from such Aggregate Data; provided that under no circumstances shall FourKites distribute or otherwise make available any data that is identifiable as Company Data unless agreed to by Customer either in writing or through enabling certain features in the Platform.
- Restrictions; Suspension. Company shall not directly or indirectly reverse engineer, attempt to derive the source code of, copy or reproduce all or any portion of the Platform, whether electronically, mechanically or otherwise, in any form including, but not limited to, copying presentation, look and feel, style, or organization. Company shall use the Platform solely for its intended purposes. Company will not use the Platform: (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 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: (A) inputting all data into the Platform; (B) maintaining confidentiality as may be required in connection with any data entered into the Platform; (C) ensuring that each of Company’s permitted Platform users within its business complies with the terms set forth herein; and (D) 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 included in the Platform is licensed subject to the additional terms of the applicable license, if any, all of which are incorporated herein by reference if and as made available to Company. FourKites shall have the right to immediately suspend access to the Platform if Company’s 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 customer.
- Confidentiality. Each party agrees to treat as confidential all confidential information of the other party, not to use such confidential information for any purpose other than to the limited extent necessary to perform and/or exercise its rights under the Agreement, and not to disclose such confidential information to any third party other than its legal counsel, accountants, and/or employees, in each case on a need to know basis and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by the other party, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. The parties hereby agree that (i) except as set forth in Section 4(b), the data and information processed through and/or stored in the Platform by Company and its users (“Company Data”) constitutes the confidential information of Company and (ii) the terms set forth in the Agreement as well as the Aggregate Data constitute confidential information of FourKites. Notwithstanding the foregoing, (A) either party may disclose the other party’s confidential information to the extent disclosure is required by law or by order of a court or governmental agency; provided that, the owner of such confidential information is given prompt prior notice of such required disclosure (to the extent legally permitted) and reasonable assistance, and its expense, if it wishes to contest the disclosure.
- DISCLAIMER. COMPANY ACcepts THE PLATFORM AND SERVICES “as is”. FourKites nor ITS employees, affiliates, agents, suppliers, OR licensors makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability, fitness for a particular purpose, or non-infringement, (b) WARRANTIES regarding Platform uptime or downtime or (c) WARRANTIES as to the ACCURACY OF results that may be obtained by the other party or the other party’s customers by entering into the agreement.
- Limitation on Liability. IN NO EVENT SHALL FOURKITES BE LIABILE TO COMPANY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THE AGREEMENT, THE PLATFORM, OR THE SERVICES, 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 THE COMPANY FOR ANY CLAIM RELATING TO THE AGREEMENT, THE PLATFORM, THE SERVICES, OR OTHERWISE SHALL NOT EXCEED THE GREATER OF THE FEES PAID TO FOURKITES UNDER THE AGREEMENT OR FIVE HUNDRED DOLLARS ($500). 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 (I) ANY PLATFORM DOWNTIME, ERRORS WITHIN OR CAUSED BY THE PLATFORM OR OTHER FAILURES IN PERFORMANCE OF THE PLATFORM, (II) CLAIMS ARISING OUT OF COMMUNICATIONS INITIATED BY COMPANY OR ANY THIRD PARTY THROUGH OR WITHIN THE PLATFORM, OR (III) ANY MISINFORMATION AND/OR FRAUD COMMITTED BY ANY USER OF THE PLATFORM.
- Governing Law. The rights and obligations of the parties under the Agreement shall be 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 the Agreement or the performance, breach or termination thereof, shall be finally settled by arbitration in Chicago, Illinois under the rules of arbitration of the American Arbitration Association. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration process.
- Export Law Assurances. Customer may not use or otherwise export the Platform in breach of any applicable United States law. In particular, but without limitation, the Platform may not be exported (a) into (or to a national or resident of) any U.S. embargoed country, (b) to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S Department of Commerce’s Table of Denial Orders. By using the Platform, Customer represents and warrants that Company is not located in, under control of, or a national or resident of any such country or on any such list.
- Miscellaneous. The Agreement constitutes the entire agreement between the parties and supersedes all prior written or oral agreements between the parties regarding the subject matter hereof (including any contradictory or additional language in any purchase order). No modifications, course of conduct, amendment, supplement to or waiver of the Agreement or any provisions thereof shall be binding upon the parties unless made in writing and duly signed by both parties. Company shall be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by the Agreement, excluding taxes based solely upon FourKites’ income derived hereunder. The relationship between the parties under the Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. The Agreement may be executed in counterparts and by electronic signature and may further be exchanged by facsimile or in scanned form, each of which shall constitute originals and all of which, when taken together, shall constitute the same original. The Agreement 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 the Agreement shall be deemed effective when delivered in person, or one day after sending such notice to the address listed on the signature page of the Subscription Order Form by reputable national courier, such as UPS, FedEx or DHL. If any provision of the Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of the Agreement 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.