Effective Date: August 19, 2020
These General Terms and Conditions for Data (these “Terms and Conditions”) along with any Authorization Form that references these Terms and Conditions (if applicable) (collectively, the “Agreement”) governs Company’s provision and FourKites use of the Data.
FourKites and Company share a Mutual Customer that has engaged FourKites to assist it with enhancing its transportation operations which includes automating certain aspects of its freight tracking capabilities. The purpose of this Agreement is to allow for sharing of select data through the FourKites platform for ultimate benefit of our Mutual Customer (the “Purpose”).
FourKites provides a proprietary predictive supply chain visibility platform and APIs, delivering real-time visibility and predictive analytics, which, among other things, processes Data provided by Carriers, Telematics Providers and other third parties to enable participants within the logistics and transportation industry to better plan, manage and track freight location and otherwise communicate with one another (the “Platform”).
Neither party shall be required to pay any fees, commission, royalties or other amounts to the other party or any third party in connection with the Agreement.
ACCESS AND USE OF DATA
Company hereby grants to FourKites and its affiliates a limited, non-exclusive, royalty-free license to access or otherwise receive the Data and incorporate the Data, and/or any API the Company may provide to FourKites to receive and integrate the Data, into the Platform to carry out the Purpose and to copy, make available and otherwise use the Data as set forth in the Agreement. Company understands and agrees that FourKites makes the Data pertaining to a Mutual Customer available to any authorized user of that Mutual Customer’s instance of the Platform, to any third party through the Platform to the extent requested or authorized by that Mutual Customer and as otherwise authorized by Mutual Customer Agreement. In addition, if Company is a Carrier engaged by a broker to move freight for a Mutual Customer, FourKites makes the Data pertaining to such freight available to the broker. Company also agrees that FourKites or its affiliates may anonymize or aggregate the Data (such anonymized or aggregated data, “Aggregate Data”) to prepare reports, analyses and enhancements and to incorporate such Aggregate Data containing the Data into other features or work product in connection with the Platform.
FourKites will use only the Data of specific Carriers moving freight for a Mutual Customer that has requested access to the Data and that is either separately identified by FourKites either in writing or electronically to Company or if Company is a Carrier engaged by a broker, to the broker (it being understood that upon completion of a delivery by a particular vehicle or vessel, FourKites will stop collecting Data on that specific vehicle or vessel unless such vehicle or vessel is assigned to another delivery within the Platform). At any time, Company may withdraw approval for a specific Mutual Customer by providing prior written notice to FourKites; provided, if Company is a Carrier engaged by a broker, Company may withdraw approval for a specific broker by providing prior written notice to FourKites.
Following termination of the Agreement or Company’s withdrawal of an approval of a specific Mutual Customer or broker, FourKites shall continue to have the right to use the Data collected prior to the date of termination or withdrawal to fulfill, subject to the terms and conditions in the Agreement. This Section shall survive any termination of the Agreement.
FourKites will maintain security over all Data in accordance with generally accepted industry standards. Data shall be maintained by FourKites on password-protected file services located in secure environments. User passwords shall be encrypted and hashed in the database.
FourKites shall process any personal data that forms part of the Data it receives under the Agreement in accordance with the Agreement and any relevant instructions, contracts or other agreements it has in place with any Mutual Customer(s).
In the event that FourKites receives Data containing personal data originating from the European Economic Area, the UK or Switzerland under the Agreement, FourKites shall process such personal data only for the limited and specified purposes under the Agreement; shall provide at least the same level of protection to the personal data contained in the Data as is required by the Privacy Shield Framework; and shall promptly notify Company if it makes a determination that it can no longer meet its obligation under the Agreement, and in such event, at FourKites’ election, shall cease processing the personal data contained in the Data or promptly take reasonable and appropriate steps to remediate any processing until the processing meets the level of protection as is required by the Privacy Shield Framework. Company acknowledges that FourKites may disclose the Agreement and any relevant privacy provisions to the U.S. Department of Commerce, the Federal Trade Commission, and/or the applicable European or Swiss supervisory authority(ies) upon request.
To the extent that Russian or Ukrainian law applies to the processing of personal data that forms part of the Data:
- the Company will be considered as the independent operator (controller) of personal data; in this case, FourKites will be processing such personal data on behalf of the Mutual Customer);
- the Company shall ensure that it has a sufficient legal basis for the relevant data processing and complies with other obligations of the operator (controller) provided by applicable law required to fulfil its obligations under the Agreement; in particular, if required by applicable law, the Company shall obtain the consents of the data subjects to the processing of their personal data, including transfer of personal data to FourKites and the Mutual Customer and further processing of personal data by FourKites and Mutual Customer;
- the Company shall provide FourKites, at its request, with sufficient evidence of the Company’s compliance with applicable data protection law;
if Russian law applies, when collecting personal data, the Company shall provide recording, arrangement, accumulation, storage, rectification (renewal, alteration), retrieval of personal data of Russian citizens with the use of a database located in Russia.
To the extent that Australian law applies to the processing of personal data that forms part of the Data, FourKites shall ensure that it complies with the Privacy Act 1988 (Cth) and the Australian Privacy Principles which form part of that Act in relation to its processing of that personal data.
To the extent that New Zealand law applies to the processing of personal data that forms part of the Data, FourKites shall ensure that it complies with the Privacy Act 1993 (NZ) in relation to its processing of that personal data.
To the extent that Brazilian law applies to the processing of personal data that forms part of the Data, the Company (as the controller) and FourKites (as the processor) shall ensure that they comply with the Brazilian General Data Protection Law (“LGPD”) in relation to their processing of that personal data.
The terms “personal data” shall have the meaning ascribed in the applicable data privacy laws for personal data, personal information or similar term (e.g. the Regulation (EU) 2016/679 (“GDPR“) for the EEA, the Swiss Federal Data Protection Act (“FDPA”) for Switzerland and the Brazilian General Data Protection Law (“LGPD”) for Brazil) and the term “Privacy Shield Framework” means the EU-US and Swiss-US Privacy Shield self-certification programs operated by the U.S. Department of Commerce, which includes the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of July 12, 2016 (as may be amended, superseded or replaced).
The term of the Agreement shall commence on the date of Acceptance and shall continue until either party terminates the Agreement as set forth herein. Either party may terminate the Agreement for convenience at any time by providing at least 30 days advance written notice to the other party.
Each party (the “receiving party”) agrees that all business, technical, financial and other confidential or proprietary information that it obtains from the other party (the “disclosing party”) is the confidential information of the disclosing party (“Confidential Information”). The receiving party will: (i) protect the disclosing party’s Confidential Information 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; (ii) limit access to the Confidential Information to those employees, affiliates, subprocessors and contractors who need to know such information in connection with the Purpose and who are bound by confidentiality and non-use obligations just as protective of the disclosing party’s Confidential Information as the terms of the Agreement; and (iii) except as set forth in the Agreement, will not disclose any of disclosing party’s Confidential Information to any third parties without disclosing party’s prior written consent. Upon termination or expiration of the Agreement or upon request of the disclosing party, the receiving party will return to the disclosing party or destroy (and certify such destruction in writing) all Confidential Information of such disclosing party (except the Data), all documents and media containing such Confidential Information, and any and all copies or extracts thereof. FourKites will destroy the Data in accordance with FourKites’ back up and retention policies. The receiving party shall not be obligated under this Section with respect to information the receiving party is required to be disclosed by law or by order of a court of competent jurisdiction, provided that the receiving party 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.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR OTHERWISE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF ANY PROVISION OF THE AGREEMENT OR ANY CONTRACT, LAW, STATUTE OR OTHER LEGAL OR EQUITABLE THEORY, AND NEITHER PARTY SHALL BE LIABLE FOR ANY DELAYS OR DAMAGES RESULTING FROM “FORCE MAJEURE” EVENTS OR OTHER EVENTS BEYOND SUCH PARTY’S REASONABLE CONTROL. This Section shall survive any termination of the Agreement.
CLAIMS AGAINST FOURKITES
Company has all right, title and ownership, including all intellectual property rights, in and to the Data necessary to grant the license herein; the Data does not infringe the intellectual property rights of a third party and providing the Data to FourKites and use by FourKites as contemplated hereunder complies with all applicable laws and regulations, including the receipt of consents and permissions required under data protection legislation, regulations, and rules to collect the Data, transfer the Data to FourKites and use of the Data in the Platform as described in the Agreement..
Company shall defend FourKites, its affiliates, and their respective successors, assigns, officers, directors and employees (each a “FourKites Indemnified Party”) against any claim, demand, suit, or proceeding made or brought against a FourKites Indemnified Party by a third party arising out of a breach of any of the statements in the above paragraph (“Claim”) and shall indemnify FourKites Indemnified Party for any damages finally awarded against, and for reasonable attorney’s fees incurred by, a FourKites Indemnified Party, and those costs and damages agreed to in a monetary settlement; provided that FourKites (i) promptly gives Company written notice of the Claim; (ii) gives Company sole control of the defense and settlement of the Claim (provided that Company may not settle any Claim unless the settlement unconditionally releases each FourKites Indemnified Party of all liability); and (iii) provides to Company all reasonable assistance, at Company’s expense. The limitations of liability set forth in the Liability Section above shall not limit Company’s indemnification obligations under this Section.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FOURKITES DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY CLAIM MADE BY ANY THIRD PARTY BASED ON ANY FAILURE OF COMPANY, CARRIER, TELEMATICS PROVIDERS, MUTUAL CUSTOMERS OR ANY OTHER PARTY TO COMPLY WITH ANY APPLICABLE DATA PROTECTION LEGISLATION, REGULATIONS, AND RULES IN CONNECTION WITH THE PROVISION AND USE OF THE DATA AS CONTEMPLATED BY THE AGREEMENT. This Section shall survive any termination of the Agreement.
To the extent Company is a Carrier and will not provide the Data directly to FourKites and instead requires FourKites to obtain the Data from Company’s Telematic Provider or other third party, then Company hereby authorizes FourKites to present an electronic and/or hard copy of the Agreement to Company’s Telematics Provider or other identified third party, and Company shall in good faith work with FourKites to provide any other documentation required by the Telematics Provider or such other third party, such that the Telematics Provider or third party can then provide FourKites with access to the Data as contemplated in the Agreement.
Any and all disputes arising out of or in connection with the Agreement are governed by the laws of the State of Illinois, without reference to conflict of law principles, and all disputes arising hereunder shall be resolved in the appropriate state or federal court located in Cook County, Illinois. The United Nations Convention for the International Sale of Goods is expressly excluded. The Agreement is the entire agreement between the parties regarding the subject matter thereof. It supersedes all prior oral or written communications, representations, undertakings and agreements of the parties relating thereto and prevails over any conflicting or additional communication between the parties. The Agreement may be modified or amended only by a written instrument duly executed by the parties. No waiver will be deemed effective unless set forth in writing and signed by the party charged with such waiver, and no waiver of any right arising from any breach will be deemed to be a waiver or authorization of any other breach or of any other right arising under the Agreement. If any provision of the Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions hereof shall be unaffected thereby and remain valid and enforceable as if such provision had not been set forth herein. The parties agree to substitute for such provision a valid provision that most closely approximates the intent of such severed provision. Any notice pursuant the Agreement 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 such party may update from time-to-time. Copies of any notice to FourKites must be sent to FourKites’ general counsel.
Company expressly acknowledges that the language of any legal proceedings, of any kind, arising out of or in connection with the Agreement will be in English. For sake of convenience only, the Agreement may be translated into languages other than English. In the event of any conflict arising out of the interpretation and/or performance of the Agreement, the version in the English language takes precedence and prevails over any other version in any other language.
Carrier means a third party that handles transport for Mutual Customers.
Company means the Carrier, Telematics Provider or other third-party entity providing Data to FourKites that has accepted the Agreement either by clicking a box indicating acceptance or executing an Authorization Form that references these Terms and Conditions.
Data means telematics and/or other location data provided by Company to FourKites under the Agreement.
FourKites means FourKites, Inc., a Delaware corporation, with principal offices at 500 W. Madison St., Suite 3300, Chicago, IL 60661.
Mutual Customer means any third party that is a customer of FourKites and a direct or indirect customer of Company, typically in Company’s position as a Carrier or Telematics Provider, that is separately identified by FourKites either in writing or electronically to Company.
Telematics Provider means any telematics provider or other supplier of GPS tracking devices or any other devices and services that are or may be used by Company to obtain any information related to transportation services including, by way of example, any GPS tracking information and information registered concerning goods during Company’s transportation thereof.
Company accepts and agrees to be bound by the Agreement (either of the following, “Acceptance”) by either (1) clicking a box indicating acceptance or (2) executing an Authorization Form that references these Terms and Conditions. The individual accepting the Agreement is accepting such on behalf of the Company and represents that he or she has the authority to bind the Company to the Agreement. If the individual accepting the Agreement does not have such authority, or does not agree with the Agreement, such individual must not accept the Agreement and must not provide FourKites the Data.