Agreement Last Updated: November 20, 2019
These CarrierLink Service Terms together with the acceptable use policy and copyright policy and all other additional terms and information that may be provided within the Service (collectively “Agreement”) constitute a fully binding agreement between FourKites, Inc. (“FourKites”, “we”, “us” or “our”) and you that governs your rights and obligations regarding the use of the Application and service (collectively, the “Service”). “Application” means FourKites’ mobile application CarrierLink (“CarrierLink Application”) and for users unable to download the CarrierLink Application, means cell phone location tracking, opted-in to via SMS or phone call consent (“CarrierLink Appless”).
Please read the terms and conditions of this Agreement carefully before downloading, installing, registering for, opting-in to use or using the Service.
By entering into this Agreement, and/or by using or accessing the Service, you expressly accept this Agreement and all of its terms and you agree to abide by them. In accepting this Agreement, you (a) acknowledge that you have read and understand this Agreement; (b) consent to this Agreement; and (c) agree to be legally bound by this Agreement. If you do not agree to be bound by the terms and conditions of this Agreement, you may not use or access the Service.
Further, you represent and warrant to FourKites that (a) you are at least 18 years of age and have the authority to agree to this Agreement and (b) to the extent you are accepting this Agreement on behalf of an entity, you have the right and authority to agree to this Agreement on behalf of such entity, in which case “you” refers hereafter to such entity.
FourKites offers a cloud-based, online software platform which, among other things, allows shippers, truckers, carriers, brokers and other participants within the logistics and transportation industry to plan and track freight location and otherwise communicate and collaborate with one another as part of a network (the “Platform”). To track freight location, FourKites retrieves the truck’s location from the telematics platforms or driver cell phones.
The CarrierLink Application also provides you with the ability to (a) send messages directly to the shipper or the receiver’s facility to provide information on status of the load; (b) check-in and check-out of the shipper or receiver’s facility (including, without limitation, complete and submit forms required by the facility, schedule appointments with the facility and receive instructions as to dock assigned to you to load or unload the freight; (c) to rate and review shipping and warehouse facilities and (d) upload a photo of a shipping document (e.g. POD document).
It is strictly forbidden to input updates or other User Content (as defined below) or otherwise interact with the Service while driving. Updates or other User Content you want to submit to the Service may only be sent after you have stopped your vehicle in an appropriate location permitted by law. As such, you waive any claims against FourKites that may arise out of any accidents or damages resulting from use of the Service in violation of the foregoing.
Further, as discussed above, the Service is designed to enable FourKites to track a load that you are transporting and is not designed to track you or your personal trips. In light of this, make sure that the device on which the Service is being used are linked to the vehicle. We recommend that you do not take the device with you when you leave the vehicle and do not use your personal device for the Service. Press the “Idle” button if you must leave your vehicle with the device or enter a country where it is illegal to follow a vehicle.
2. Electronic Communications
You agree that we may provide notices and messages about the Service to you in the following ways: (a) within the Service or (b) sent to your contact information provided to us (e.g., e-mail or phone number).
You agree that texts may be generated by automatic systems. Communications from us may include text, email messages, and push notifications to provide a code to sign into the Service or regarding the operation of the Service, updates regarding new, existing, and discontinued features of the Service. We do not charge for text messages, but standard or other charges imposed by your carrier may apply. Please check your carrier’s plan before using the Service to be sure you understand any charges that may be incurred by you.
3. The License
During the term of this Agreement and subject to this Agreement, FourKites hereby grants you a free of charge, non-exclusive, non-transferrable, non-sublicensable, revocable, limited license to access and use the Service and Content (as defined herein) to (a) track loads you are transporting; (b) communicate with shippers, carriers, brokers and other participants within the logistics and transportation industry; (c) rate and review shipping or warehouse facilities and amenities; and (d) engage in other communications with participants in the trucking and/or shipping industry.
You hereby acknowledge that FourKites does not directly provide any products or services to you other than making commercially reasonable efforts to make the Service and Content available for use in accordance with the license granted in this Section.
4. License Restrictions
You (and/or any third party on your behalf) may not:
- directly or indirectly copy, modify, translate, adapt or otherwise create derivative works or improvements of the Service, the Content or any part thereof;
- directly or indirectly reverse engineer, attempt to derive the source code of, copy or reproduce all or any portion of the Service (including the Application), Platform or Content, whether electronically, mechanically or otherwise, in any form including, but not limited to, copying presentation, look and feel, style, or organization; or
- use the Service or Content in violation of the acceptable use policy or other policy posted at FourKites’ website or otherwise made available to you from time to time.
You shall use the Service solely for its intended purposes and shall not use the Service for the benefit of any third party except as specifically contemplated under this Agreement. You may not use the Service commercially. For example, you may not: (a) offer to third parties a service of your own that uses the Service; (b) resell the Service; (c) offer to rent or lease the Service; or (d) offer the Service to the public via communication or integrate it within a service of your own, without the prior written consent of FourKites. For clarity, the examples listed are made for illustrative purposes only; they do not constitute an exhaustive list of restricted activities involving the Service.
5. Intellectual Property Rights
The Service, and any content, materials, graphics, features, functionality, and products or services accessible on or through the Service (collective, the “Content”) and all upgrades, updates, corrections, and enhancements thereto and all copyrights and other intellectual property rights related thereto are the property of FourKites, its affiliates and its and their licensors and suppliers; and FourKites, its affiliates and their respective licensors and suppliers retain all right, title and interest in and to the Service, the Content and all intellectual property rights therein or in connection thereto. The Service and the Content are owned and operated by FourKites, and they are licensed, not sold, to you.
The design, trade dress, and the ‘look and feel’ of the Service are protected works under applicable intellectual property laws, and we and our affiliates, licensors and suppliers retain all intellectual property rights in them. You acknowledge that we are the owner and licensor of the trademarks, logos, service marks, trade names and similar designation of FourKites (collectively, the “FourKites Marks”), including all goodwill associated therewith, and that your use of the FourKites Marks will confer no additional interest in or ownership of the FourKites Marks in you but rather inures to the benefit of FourKites.
All other trademarks, logos, service marks, company or product names set forth in the Service, such as the logos or trademarks of any third-party provider, are the property of their respective owners.
All suggestions, recommendations, bug-fixes, error-fixes or other communications from you to FourKites regarding the Service shall, upon submission to FourKites, be owned solely and exclusively by FourKites.
6. Your Data and Content
As between you and FourKites, subject to the rights granted to us in this Agreement, you retain full ownership of all of your User Data and User Content and any intellectual property rights or other proprietary rights associated with your User Data and User Content.
7. Third Party Services
The Service may display, include, or make available third-party services (including data, information, applications, and other products, services, and/or materials) (“Third Party Services”). You acknowledge and agree that FourKites is not responsible for Third Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. FourKites does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Services. Third Party Services and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
You are solely responsible for maintaining the confidentiality of your CarrierLink Application account. You agree not to transfer your CarrierLink Application account to another person or lend or otherwise transfer your use of or access to the Service to anyone else. You are also solely responsible for any and all activities that occur under your CarrierLink Application account with the Service.
9. Term and Termination
We will retain your personal information for the period necessary to fulfill the purposes for which it was collected and as otherwise needed to comply with applicable law and internal company policies. Specifically, your location data obtained by the Service will be retained in FourKites’ servers for up to 90 days after the termination of the agreement between FourKites and its applicable customer.
The Service and the Content are provided to you “as is” and “as available” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, FourKites, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service and the Content, including all implied warranties of, merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice.
Without limitation to the foregoing, FourKites provides no warranty or undertaking and makes no representation of any kind that the Service and the Content, will meet your requirements, achieve any intended results, be compatible, or will work with any other software, applications, systems, or services, operate without interruption, meet any performance or reliability standards or be error-free, or that any errors or defects can or will be corrected.
In addition, you hereby agree and acknowledge that: (a) FourKites shall not be responsible for any actions taken by any other party using the Service or reviewing any of your User Content; (b) FourKites does not recommend or endorse any third parties hereunder, and makes no representations or warranties whatsoever regarding any such third party; (c) FourKites is not responsible for any other party’s compliance with applicable laws, rules or regulations (including, without limitation, any licensing requirements); (d) FourKites is not responsible for verifying the accuracy or veracity of any User Content; and (e) FourKites shall not, under any set of circumstances, be responsible or liable for an content, text, photographs and/or other User Content, including any User Content which may violate applicable law and/or a third party’s intellectual property rights.
FourKites shall not be liable in any way for the condition of any product, the performance of any service or any other action taken by any third party. FourKites is not a party to any transaction or business arrangement between you and any customer of FourKites, and shall not be held responsible or liable in any way for any damages or issues that may arise in connection with such relationship. You agree and acknowledge that FourKites does not make any representations or warranties regarding any other users of the Service, any information conveyed through the Service, including the User Content, or any communications facilities through or within the Service. You agree and acknowledge that certain information posted within the Service may be inaccurate. You agree that FourKites shall not be liable for any damages or costs of any type arising out of or in any way connected with any relationship initiated or any information learned via the Service. In no event shall FourKites be liable for any third party materials, database and/or their content, including all implications arising from such error or malfunction related to database.
Additionally and without derogating from the above clauses, FourKites disclaims any warranties relating to the accuracy of the maps, road conditions, driving directions, or navigation routes presented or displayed in or by the Service. For instance, existing roads may be missing from the map.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, FOURKITES, ITS AFFILAITES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, LICENSORS AND SERVICE PROVIDERS SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE SERVICE OR CONTENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN ANY EVENT, YOUR SOLE REMEDY WILL BE LIMITED TO CORRECTING SUCH ERRORS, OR MALFUNCTIONS, AND IN LIGHT OF THE RELEVANT CIRCUMSTANCES. IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF FOURKITES TO YOU FOR ANY CLAIM RELATING TO THIS AGREEMENT, THE SERVICE, THE CONTENT, OR OTHERWISE SHALL NOT EXCEED FIFTY DOLLARS ($50).
You agree to indemnify, defend, and hold harmless FourKites, its affiliates, and its and their respective directors, officers, employees, contractors, agents, representatives, successor and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to (a) your use or misuse of the Service, including but not limited to the User Content you submit or make available through the Service, and (b) your breach of this Agreement.
14. Export Control
You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
15. Modifications to the Service
FourKites may, either partially or in its entirety and without being obligated to provide prior notice, modify, adapt or change the Service’s features, the user interface and design, the extent and availability of the contents in the Service and any other aspect related to the Service. You will have no claim, complaint or demand against FourKites for applying such changes or for failures incidental to such changes.
16. Modification of these the Agreement
FourKites may modify the Agreement from time to time. All non-material changes are effective immediately when we post them and apply to all access to and use of the Service thereafter. If we make material updates to this Agreement that would negatively impact your rights or increase your obligations under this Agreement, a notice will be posted within the CarrierLink Application. You are responsible for periodically visiting this Agreement to check for any changes. Your continued use of the Service after this Agreement has been modified signifies your assent to this Agreement as revised. If you dissent to the updated Agreement or to any term within them, you must discontinue all further use of the Service. You should check this Agreement regularly to ensure you remain current on the terms set forth herein.
These CarrierLink Service Terms together with the policies that are an integral part of the Agreement, namely the acceptable use policy and copyright policy, constitute the entire and complete agreement between you and FourKites concerning the Service and Content and supersede all prior or contemporaneous understanding and agreements, whether written or oral, with respect to the Service and the Content. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
18. Governing Law; Jurisdiction; Limitations
This Agreement is governed by the laws of the State of Illinois, without giving effect to any conflicts of law principles. Any dispute, claim or controversy arising out of, connected with or relating to this Agreement and the Service, will be under the exclusive jurisdiction of the competent court in Cook County, Illinois. Should you desire to file any cause of action against FourKites, arising out of or related to the Service, you must do so within one year of the day you become aware of the cause of action. Failure to file a lawsuit within the aforementioned timeframe will bring about the permanent barring of the cause of action and will constitute your complete and final waiving of the lawsuit.
You may not assign or transfer your rights in and to the Service and the Content, without our prior written consent. FourKites may assign its rights in and to Service and the Content to a third party at its sole and absolute discretion, provided that the third party undertakes FourKite’s obligations to you under this Agreement.
This Agreement and your use of the Service, including the submission of User Data and User Content into the Service, do not create, and shall not be construed as creating, any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship in any way and of any kind between the parties hereto. Your access and use of the Service is intended for your enjoyment and benefit and for the benefit of our Platform customers. The provision of the Service to you (subject to your compliance with this Agreement) constitutes the sole and sufficient consideration that you are entitled to receive for any User Data, User Content or other contributions you make to the Service. Fees charged for the Platform, if any, are set forth in separate agreements with FourKites and its customers.
21. Third Party Outlets
When you access and use the Service from your device(s), you agree that:
The Service is made available to you via third parties, including Apple, Inc.’s “App Store” or Google, Inc.’s “Google Play” store (collectively, the “Third Party Outlets”).
This Agreement is between you and FourKites only. Third Party Outlets have no obligations to you or responsibility for the Service, including without limitation, any obligation to furnish any maintenance and support services for the Service. We are responsible for addressing any claims of any user or any third party relating to the Service, including, but not limited to: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
The Third Party Outlets and their subsidiaries are third-party beneficiaries of this Agreement, and, upon your acceptance of this Agreement, each Third Party Outlet will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
22. Cellular Providers (AT&T, Sprint, T-Mobile, Verizon Wireless and others).
Cell phone-based location tracking is supported by the following carriers – AT&T, Sprint and its brands Virgin and Boost, T-Mobile and its brand MetroPCS, Verizon Wireless and U.S. Cellular. This is subject to change without notice.
This is not a Cellular Provider application. You acknowledge and agree that (a) your relationship with us as the application provider is separate from your relationship with your Cellular Provider; (b) your Cellular Provider is not responsible for the Service; and (c) you will hold harmless your Cellular Provider and its subsidiaries, affiliates, officers, employees, agents, successors and assigns from any judgments, claims, actions, losses, liabilities or expenses arising from or attributable to this Service or the acts or omissions of us.
Message and data rates may apply. Reply HELP to 84787 for help. Reply STOP to 84787 to cancel. Up to 20 messages / month.
In the event of any controversy or dispute regarding any transaction or engagement conducted through use of the Service (a “Dispute“), you hereby release FourKites, its affiliates and subsidiaries, and their respective directors, managers, officers, employees, agents, equity holders, co-branders, partners, successors and assigns (the “Released Parties“), and each of the foregoing, from any and all manner of action, claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses, including without limitation court costs and attorneys’ fees, which you may have against the Released Parties, or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a Dispute. If you are a California resident, you hereby waive your rights under Section 1542 of the California Civil Code, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
24. Contact Us
You may contact us concerning any question about the Service, by clicking on App Support in your Settings within the CarrlierLink Application, by emailing email@example.com or calling (888) 466-6958. We will make our best efforts to address your inquiry promptly.