Agreement Last Updated: January 15, 2020
Please read the terms and conditions of this Agreement carefully before registering for, opting-in to use, or using the Portal.
By entering into this Agreement, and/or by using or accessing the Portal, you expressly accept this Agreement and all of its terms and you agree to abide by them. You also: (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 Portal.
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, real-time supply chain visibility 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, the Platform, in addition to other means, retrieves telematics data from telematics providers with respect to vehicles or vessels carrying freight for a customer of the Platform.
The Portal provides you with the ability to provide certain information to enable FourKites to onboard carriers onto the Platform for purposes of obtaining telematics data from onboarded carriers to support the Platform (“Your Information”). Specifically:
(a) if you are a shipper or broker, the Portal allows you to (i) add a contact (name and email) for each of your carriers to be onboarded to the Platform and (ii) send an email to each of these carriers requesting them to register for onboarding through the Portal; and
(b) if you are a carrier, the Portal allows you to (i) provide the information necessary to onboard you to the Platform so that freight you carry can be tracked through the Platform (e.g., who your telematics platform provider is, ftp credentials if load information is to be inputted to the Platform via ftp, truck numbers, and/or driver cellphone number if loads are to be tracked by cellphone) and (ii) provide additional contact information (name(s) and email(s)).
2. Electronic Communications
You agree that we may provide notices and messages about the Portal to you in the following ways: (a) within the Portal or (b) sent to your contact information provided to us (e.g., email or phone number). You further agree, represent, and warrant that you have all necessary permissions and consents, under all applicable laws, for us to contact (including by email) any third parties about whom you provide us contact information for the purpose of requesting them to register, or of actually registering them, for onboarding through the Portal.
You agree that emails and texts may be generated by automatic systems. Communications from us may include text, email messages, and push notifications regarding the operation of the Portal, including updates regarding new, existing, and discontinued features of the Portal. We do not charge for text messages, but standard or other charges imposed by your cellular carrier may apply. Please check your cellular carrier’s plan before using the Portal 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 Portal and Content (as defined below) to submit Your Information to FourKites through the Portal.
You hereby acknowledge that FourKites does not directly provide any products or services to you under this Agreement other than making commercially reasonable efforts to make the Portal 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 Portal, 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 Portal 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 Portal or Content in violation of the acceptable use policy or other policy(ies) posted at or through the Portal and/or FourKites’ website or otherwise made available to you from time to time.
You shall use the Portal and Content solely for their intended purposes and shall not use the Portal or Content for the benefit of any third party except as specifically contemplated under this Agreement. You may not use the Portal or Content commercially. For example, you may not: (a) offer to third parties a service of your own that uses the Portal or Content; (b) resell the Portal or Content; (c) offer to rent or lease the Portal or Content; or (d) offer the Portal or Content 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 Portal and/or Content.
5. Intellectual Property Rights
The Portal, and any content, materials, graphics, features, functionality, and products or services accessible on or through the Portal (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. FourKites, its affiliates, and their respective licensors and suppliers retain all right, title, and interest in and to the Portal, the Content, and all intellectual property rights therein or in connection thereto. The Portal is owned and operated by FourKites, and access to the Portal and Content is licensed, not sold, to you.
The design, trade dress, and the ‘look and feel’ of the Portal are protected works under applicable intellectual property laws, and we and our affiliates and subsidiaries, and our and their 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, and company or product names set forth in the Portal and/or the Content, 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 Portal shall, upon submission to FourKites, be owned solely and exclusively by FourKites.
6. Your Information
In addition, in the course of your use of the Portal, you may submit and share other content and information with us and other users of the Portal, which may include the identity of your telematics platform and/or the provider of such platform as well as the content of emails exchanged by you to your carriers inviting them to register in the Portal and all of which also shall be considered Your Information under this Agreement. You shall be solely responsible for all such content and information that you input into, or generate from, the Portal, and you acknowledge that once you input or generate such content or information to or through the Portal, you may not be able to withdraw or delete it. FourKites shall be entitled, at its sole discretion, to: (a) remove or cancel any such content or information that FourKites deems to not be in compliance with this Agreement or to be inappropriate in any way, and FourKites shall not be liable to you or any other party on account of any such decision; (b) review all such content or information to ensure that it complies this Agreement; or (c) suspend, restrict, and/or terminate, without notice of any kind, your access to the Portal for any reason. Notwithstanding the foregoing, FourKites shall not be required to review or monitor any content or information entered into the Portal, and you shall be solely responsible for the veracity and accuracy of all such data, content, and information as well as your right to disclose such data, content, and information through the Portal.
As between you and FourKites, subject to the rights granted to us in this Agreement, you retain full ownership of all of Your Information and any intellectual property rights or other proprietary rights associated with Your Information.
7. Third-Party Content
The Portal may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) (“Third-Party Content”). You acknowledge and agree that FourKites is not responsible for Third-Party Content, including its 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 Content. Third-Party Content 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 Portal account. You agree not to transfer your Portal account to another person or lend or otherwise transfer your use of or access to the Portal to anyone else. You are also solely responsible for any and all activities that occur under your Portal account.
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.
If you are carrier, we will store and make available to those shippers and brokers with whom you engage your contact information included in Your Information and you hereby consent to us doing so.
The Portal 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 subsidiaries and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory, or otherwise, with respect to the Portal 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 Portal 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 Portal or reviewing any of Your Information; (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 privacy regulations or contractual obligations); (d) FourKites is not responsible for verifying the accuracy or veracity of Your Information or the rights to provide Your Information to FourKites; and (e) FourKites shall not, under any set of circumstances, be responsible or liable for Your Information, including any of Your Information which may violate applicable law and/or a third party’s intellectual property or privacy 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 other user of the Portal or of the Platform, 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 Portal, any information conveyed through the Portal, including Your Information, or any communications facilities through or within the Portal. You agree and acknowledge that certain information posted within the Portal 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 Portal. 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 any email communications you send, or facilitate, through the Portal and shall not be responsible for any such email communications you send under any applicable laws, rules, or regulations.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, FOURKITES, ITS AFFILIATES AND SUBSIDIARIES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, 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 PORTAL 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 PORTAL, THE CONTENT, OR OTHERWISE SHALL NOT EXCEED FIFTY DOLLARS ($50).
You agree to indemnify, defend, and hold harmless FourKites, its affiliates and subsidiaries, and its and their respective officers, directors, employees, managers, members, shareholders, employees, agents, representatives, licensors, suppliers, service providers, successors, 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 Portal, including but not limited to Your Information you submit or make available through the Portal 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 Portal
FourKites may, either partially or in its entirety and without being obligated to provide prior notice, modify, adapt, or change the Portal’s features, the user interface and design, the extent and availability of the contents in the Portal, and any other aspect related to the Portal. You will have no claim, complaint, or demand against FourKites for applying such changes or for failures incidental to such changes.
16. Modification of this Agreement
FourKites may modify this 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 Portal 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 Portal and/or you will be notified via email. You are responsible for periodically visiting this Agreement to check for any changes. Your continued use of the Portal 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 it, you must discontinue all further use of the Portal. You should check this Agreement regularly to ensure you remain current on the terms set forth herein.
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.
You acknowledge and agree that FourKites may identify you as a participant or user of Partner Hub.
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 Portal, 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 Portal, 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 to the fullest extent permitted by applicable law.
You may not assign or transfer your rights to use the Portal and the Content, without our prior written consent. FourKites may assign its rights in and to Portal and the Content to a third party at its sole and absolute discretion, provided that the third party undertakes FourKites’ obligations to you under this Agreement.
This Agreement and your use of the Portal, including the submission of Your Information through or into the Portal, 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 Portal are intended for your enjoyment and benefit and for the benefit of our Platform customers. The provision of the Portal and Content to you (subject to your compliance with this Agreement) constitutes the sole and sufficient consideration that you are entitled to receive for any of Your Information or other contributions you make to the Portal. Fees charged for the Platform, if any, are set forth in separate agreements with FourKites and its customers.
In the event of any controversy or dispute regarding any transaction or engagement conducted through use of the Portal or the Content (a “Dispute“), you hereby release FourKites, its affiliates and subsidiaries, and its and their respective officers, directors, employees, managers, members, shareholders, employees, agents, representatives, licensors, suppliers, service providers, 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.”
22. Contact Us
You may contact us concerning any question about the Portal by emailing email@example.com or calling (888) 466-6958. We will make our best efforts to address your inquiry promptly.