Terms of Use – Instant Messenger

These Terms of Use – Instant Messenger (“Terms”) constitute a binding agreement between you (“you”) and FourKites, Inc. (“FourKites”). These Terms govern your access to and use of the FourKites Instant Messenger Feature (including all related documentation, the “IM Feature”). The IM Feature is licensed, not sold, to you.

BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE IM FEATURE. THESE TERMS MAY BE UPDATED BY FOURKITES FROM TIME TO TIME. YOUR ACCESS TO AND/OR USE OF THE IM FEATURE AFTER BEING PRESENTED WITH THE UPDATED TERMS CONSTITUTES YOUR ASSENT TO THE UPDATED TERMS.

Capitalized terms have the meanings ascribed to them throughout these Terms.

1. IM Feature License. Subject to these Terms, FourKites hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, and limited license to access and use the IM Feature for the purposes described in these Terms and strictly in accordance with the documentation for the IM Feature. The foregoing license is limited to your personal use on a computer, tablet, or mobile device owned or otherwise controlled by you (“Device”) in connection with freight transports involving one or more customers of FourKites that expressly invite you to use the IM Feature for the purpose of communicating about such freight transports.
2. License Restrictions. You shall not:
   1. copy the IM Feature or any part thereof (including, without limitation, any code), except as expressly permitted by these Terms;
   2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable or copyrightable, of the IM Feature;
   3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the IM Feature or any part thereof;
   4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the IM Feature, including any copy thereof;
   5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the IM Feature, or any functionality of the IM Feature, to any third party for any reason, including by making the IM Feature available on a network where it is capable of being accessed by more than one device at any time;
   6. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the IM Feature;
   7. input to or transmit through the IM Feature any data unrelated to the tracking of freight location, including social security numbers, financial account numbers, health information, driver’s license, passport or visa numbers, credit card data, or any special categories of personal data;
   8. download or export, or attempt to download or export, any content from the IM Feature; or
   9. use the IM Feature in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.
3. Reservation of Rights. You acknowledge and agree that the IM Feature is provided under license, and not sold, to you. You do not acquire any ownership interest in the IM Feature under these Terms, or any other rights thereto other than to use the IM Feature in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. FourKites and its licensors and service providers reserve and shall retain its and their entire right, title, and interest in and to the IM Feature, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms.
4. Collection and Use of Your Information. You acknowledge that when you access or use the IM Feature, FourKites may use automatic means (including, for example, cookies and web beacons) to collect information about your Device and about your use of the IM Feature. You also may be required to provide certain information about yourself as a condition to accessing or using the IM Feature or certain of its functionality, and the IM Feature may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this IM Feature is subject to our Privacy Policy located at https://www.fourkites.com/privacy-policy.
5. Geographic Restrictions. The IM Feature is provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access IM Feature outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the IM Feature from outside the United States, you are responsible for compliance with local laws.
6. Updates. FourKites may from time to time in its sole discretion develop and provide IM Feature updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete in their entirety certain content and functionality. You agree that all Updates will be deemed part of the IM Feature and be subject to all terms and conditions of these Terms.
7. Third-Party Materials. The IM Feature may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services (“Third-Party Materials“). You acknowledge and agree that FourKites is not responsible for Third-Party Materials, 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 Materials. Third-Party Materials 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.
8. Term and Termination.
   1. The term of these Terms commences when you acknowledge your acceptance by clicking the “Agree” button, or access or use the IM Feature after being presented with these Terms, and will continue in effect until terminated by you or FourKites as set forth in this 8.
   2. FourKites may terminate these Terms at any time without notice if it ceases to support the IM Feature, which FourKites may do in its sole discretion, or by updating these Terms, as described above. In addition, these Terms will terminate immediately and automatically without any notice if you violate any of the terms and conditions of these Terms.
   3. Upon termination:
      1. all rights granted to you under these Terms will also terminate; and
      2. you must cease all use of the IM Feature and delete all copies of the IM Feature from your Device and account.
   4. Termination will not limit any of FourKites’ rights or remedies at law or in equity.
9. Disclaimer of Warranties. THE IM FEATURE IS PROVIDED TO YOU “AS IS” 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 IM FEATURE, 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 IM FEATURE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR 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. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER. SO, SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FOURKITES OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY, ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE IM FEATURE, TO YOU FOR:
    1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
    2. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED FIVE HUNDRED US DOLLARS ($500.00 USD).
    THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR FOURKITES WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY. SO, SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
11. Indemnification. You agree to indemnify, defend, and hold harmless FourKites and its officers, directors, employees, agents, affiliates, 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 your use or misuse of the IM Feature or your breach of these Terms, including but not limited to the content you submit or make available through this IM Feature.
12. Export Regulation. The IM Feature may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the IM Feature to, or make the IM Feature accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the IM Feature available outside the US.
13. US Government Rights. The IM Feature is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the IM Feature as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
14. Severability. If any provision of these Terms 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 these Terms will continue in full force and effect.
15. Governing Law. These Terms are governed by and construed in accordance with the internal laws of the State of Illinois, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to these Terms or the IM Feature shall be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois, in each case located in Chicago. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
16. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE IM FEATURE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
17. Entire Agreement. These Terms, the documentation, and our Privacy Policy constitute the entire agreement between you and FourKites with respect to the IM Feature and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the IM Feature.
18. Waiver. 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. In the event of a conflict between these Terms and any applicable purchase or other terms, the terms of these Terms shall govern with respect to the IM Feature.