Effective Date: November 17, 2020
These General Terms and Conditions for Data (these “Terms and Conditions”) along with any Authorization Form, or any other document or online terms that incorporates these Terms and Conditions by reference (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 planning, managing, tracking and yard management capabilities. The purpose of this Agreement is to allow for sharing of select data through the FourKites platform for the ultimate benefit of our Mutual Customer (the “Purpose”).
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. FourKites will only use the amount of Data necessary to carry out the Purpose and as set forth in the Agreement. In the event Company provides any additional Data to FourKites, Company authorizes FourKites to delete the Data that is not necessary for the Purpose. 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 the Mutual Customer. 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. Notwithstanding anything to the contrary in the Agreement, 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 and that FourKites shall own and retain all right, title, and interest in and to Aggregate Data.
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 the Purpose, 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 connection with the Purpose, FourKites provides the Platform to allow the Company and Mutual Customers to access certain Data and, in most circumstances, FourKites is acting as a processor with respect to personal data contained in the Data on behalf of each of (a) the Mutual Customer, and (b) the Company. To the extent FourKites is acting as a processor to the Company with respect to the personal data contained in the Data and Privacy Laws apply to FourKites’ processing of such personal data, the data protection terms available here are incorporated into this Agreement.
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.
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, as between the parties hereto, all business, technical, financial and other confidential or proprietary information and data, including the Data, 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, provided, 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 data or information the receiving party is required to disclose 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 THE AGREEMENT, WHETHER BASED IN CONTRACT, TORT, OR ANY 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.
The Agreement 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 the Agreement 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. The immediately preceding sentence shall not prevent either party from seeking immediate injunctive relief in any court of competent jurisdiction. Each party shall pay its own costs and expenses in connection with the Agreement and its activities hereunder. The Agreement, together with any forms and policies referenced herein (all of which are hereby incorporated by reference unless otherwise expressly excluded), supersede all prior written or oral agreements between the parties regarding the subject matter hereof (including any earlier version replaced by this version). Neither party shall be, nor represent itself to be, the joint venturer, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. 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. The Agreement may be modified or amended only by a written instrument duly executed by the parties; provided, however, that, notwithstanding anything to contrary in the Agreement, FourKites reserves the right to make any modifications to the Agreement as may be necessary to comply with applicable laws and Company’s continued sharing of the Data thereafter shall constitute acceptance of, and consideration for, such modifications. 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 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. 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 data, other location data, and other data provided by Company to FourKites under any Authorization Form, or any other document or online terms that references these Terms and Conditions.
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.