FOURKITES SERVICES FourKites is a logistics technology platform utilizing the latest Machine-2-Machine (M2M) technologies. FourKites platform enables better collaboration between asset based trucking companies and their customers by shortening the communication lag time using cloud based data sharing technologies. FourKites retrieves the truck location from the telematics platforms and driver cell phones (using CarrierLink mobile application or CarrierLink cell phone based location tracking) and integrates that with weather and Google maps to create proactive status update messages for trucking companies customers. When using cell phone location tracking, we will request your permission to locate your cell phone in order to provide ETA information and active load location status updates to the appropriate shipper, 3PL, broker and/or carrier. Your cell phone will never be located without your consent, which is obtained via an SMS or IVR optin process that requires you to reply yes to confirm your consent for location. FOURKITES TERMS OF USE These Terms of Use (this Agreement ), which is a legal agreement between you ( You or "you") and FourKites, Inc., a Delaware corporation ( Company ), shall govern Your use of and access to the Application (as defined below). By checking any acceptance boxes, clicking any acceptance buttons, submitting any text or content, downloading the Application, simply by making any use of the Application, or by giving consent to tracking verbally over phone or by pressing a button to enable tracking, You (a) accept this Agreement and agree to be bound by each of its terms, and (b) represent and warrant to Company that (i) You are at least 13 years of age and have the authority to enter into this Agreement (either on your own behalf or by having a parent or legal guardian agree to the terms set forth herein on your behalf), (ii) this Agreement is binding and enforceable against You, (iii) to the extent an individual is accepting this Agreement on behalf of an entity, such individual has the right and authority to agree to all of the terms set forth herein on behalf of such entity, and (iv) You have read and understand Company's Privacy Policy, the terms of which are posted within the Application and incorporated herein by reference (the Privacy Policy ), and agree to abide by the Privacy Policy. Company may amend this Agreement from time to time, each of which amendments shall be deemed to be effective 2 days after posting within the Application. You should check this Agreement regularly to ensure You remain current on the terms and agreements set forth herein. You hereby acknowledge that the Application is not intended to be used while driving or operating any truck or motor vehicle, as any such use is dangerous and can lead to injuries and/or deaths. As such, You hereby agree to refrain from accessing or using the Application while driving, and You waive any claims against Company that may arise out of any accidents or damages resulting from use of the Application in violation of the foregoing. 1. Purpose; Certain Acknowledgments. The purpose of this Agreement is to set forth the terms and conditions under which, among other things, Company will license to You use of the Application for purposes of (i) allowing You to post and/or review pick-up and/or delivery times for one or more shipments, (ii) allowing You to schedule delivery times, (iii) communicating with shippers and brokers, (iv) providing status updates as to truck availability, and (v) generally engaging in certain other communications with participants in the trucking and/or shipping industry. References to "Application" shall mean any mobile application made available by Company either in the itunes Store, within the Google Play store or any other similar store where mobile applications can be purchased and/or downloaded. For users unable to download a mobile application, Application may refer to cell phone location tracking, opted-in to via phone call consent. Access to the Application for the purposes described above is sometimes reference to herein as the "Purpose". You hereby acknowledge that Company does not directly provide any products or services to You other than making commercially reasonable efforts to make the Application available for use in accordance with the Purpose. Your access to the Application shall only be permitted so long as one or 1
more direct customers of the Company, each of which has entered into a separate agreement with Company, indicates to Company that You will be a permitted User of the Application in connection with Company's services to such customer. To the extent any such customer notifies Company that You should no longer be a permitted user of the Application, or to the extent Company's business relationship with any such customer terminates for any reason, Your access to the Application will also be terminated. Company is not Your agent. Company's services are administrative only. Company 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. Company is not a party to any transaction or business arrangement between You and any customer of the Company, 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 Company does not make any representations or warranties regarding any other users of the Application, any information conveyed through the Application or any communications facilities through or within the Application. You agree and acknowledge that certain information posted within the Application may be inaccurate. You agree that Company 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 Application. Users of the Application are solely responsible for independently verifying the background, reputation and credit-worthiness of those parties with whom they enter into, or with whom they prospectively will enter into, a transaction or engagement. Further to your release above, in the event of any controversy or dispute regarding any transaction or engagement conducted through use of the Application (a "Dispute"), you hereby release Company, 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." Company expressly reserves the right to discontinue, suspend or terminate the offering of the Application at any time. 1.1 Activation. To activate the Application, download and install the mobile application from the itunes Store, the Google Play store, or any other similar store where mobile applications can be purchased and/or downloaded. Activation of location tracking may also be completed by answering an automated IVR call from the Company and responding in the affirmative or by responding via SMS in the affirmative. When activation is completed, you will notified via SMS. 1.2 Deactivation. To deactivate mobile application based tracking, uninstall the mobile application. In case of cell phone based tracking, send a SMS to STOP tracking as a response to the confirmation SMS received at the time of opt-in or or send STOP to 84787. 1.3 Support. For support or HELP, email support@fourkites.com or call (888) 466-6958 1.4 Data Retention. Driver Location data obtained by tracking driver cell (other than using CarrierLink mobile application) will be retained in FourKites servers for up to 62 days from the date of 2
Delivery so that FourKites is able to supply customers with accurate historical records, and for internal operations and analysis. All location data is securely stored using technology and security features that safeguard the privacy of your location information, including: maintaining and protecting the security of computer storage and network equipment, security procedures that require usernames and passwords to access sensitive data, applying encryption or other appropriate security controls to protect location information when stored or transmitted by FourKites, and limiting access to location information to only those with jobs requiring such access. At the end of the 62 day period the location data will be permanently deleted from FourKites servers. 2. License. Company hereby grants You a non-transferable, non-exclusive, revocable, limited license to access and use the Application as made available from time to time via mobile application during the Term (as defined below) solely for the Purpose. Company may, from time to time, update or modify the Application, release new versions of the Application or create new modules related thereto, each of which may, at Company's discretion, be included within the license described above. You shall not be permitted to sublicense or transfer any of Your rights hereunder including, without limitation, access to the Application. 3. Certain Restrictions. You shall not directly or indirectly copy or reproduce all or any part of the Application, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. You shall use the Application solely for its intended purposes and shall not use the Application for the benefit of any third party except as specifically contemplated under this Agreement. You shall not use the Application to post, transmit, convey, submit, distribute, store or destroy any content, photographs, descriptions, drawings, content, audio materials, text, messages or other information (collectively, "Posted Information"): (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; (f) that is inappropriate in any way; or (g) in violation of the any acceptable use policy or other policy posted within the Application from time to time. You shall not violate or attempt to violate the security of the Application. You shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Application, including, without limitation, any of the software comprising or in any way making up a part of the Application. You shall defend and indemnify Company, at Your sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of Your breach of any of Your obligations or representations set forth in this Section 3. 4. Certain Responsibilities and Acknowledgments. You shall be solely responsible for: (i) all Posted Information you input into the Application; (ii) ensuring that all Posted Information is appropriate in tone and is accurate; (iii) complying with all applicable laws, rules and regulations at all times; and (iv) maintaining all passwords and access codes to the Application, and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes to access the Application. You acknowledge that once a message, content or any Posted Information is submitted or posted to the Application, You may not be able to withdraw or delete it. 5. Company Rights. Company shall be entitled, at its sole discretion, to: (i) remove or cancel any Posted Information that Company deems to be offensive, illegal, inaccurate, contrary to any agreement or contract or inappropriate in any way, and Company shall not be liable to You or any other party on account of any such decision; (ii) review all Posted Information to ensure that it complies with all applicable rules and policies; or (iii) suspend, restrict and/or terminate, without notice of any kind, Your access to the Application for any reason. Notwithstanding the foregoing, Company shall not be required to review or monitor any Posted Information entered into the Application, and You shall be solely responsible for the veracity and accuracy of all such data, content and information. 3
6. Fees. Fees charged for the various products and/or services offered through the Application, if any, are set forth in separate agreements with Company. 7. Term and Termination. This Agreement shall continue in full force and effect (the "Term") for so long as you have access to the Application. Your access to the Application, as detailed 4
above, shall only be permitted so long as one or more direct customers of the Company, each of which has entered into a separate agreement with Company, indicates to Company that You will be a permitted User of the Application in connection with Company's services to such customer. To the extent any such customer notifies Company that You should no longer be a permitted user of the Application, or to the extent Company's business relationship with any such customer terminates for any reason, Your access to the Application will also be terminated. In addition, Company shall be entitled to terminate your access to the Application at any time. Upon termination of this Agreement for any reason, You shall no longer be entitled to access or use the Application. In addition to the foregoing, in the event that Company determines, in its sole and absolute discretion, that You have breached this Agreement, threatened to breach this Agreement, committed any fraud or deception, breached any Company policy in effect from time to time or otherwise failed to perform to the standards required of Company, Company shall be entitled, at its discretion and in addition to any other remedies it may have hereunder and/or at law, to terminate, cancel or suspend Your access to the Application, in each of the foregoing cases at any time and for any period of time. Company shall not be responsible for the return of any Posted Information of any kind to You upon any termination of this Agreement or suspension of Your access to the Application, including without limitation any information input into the Application by You. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of this Agreement shall survive any termination of this Agreement. 8. Intellectual Property. (a) General Ownership. All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. For purposes of clarity: (i) as between You and Company, You shall be deemed to be the sole owner of all Posted Information entered into the Application or otherwise posted by You; and (ii) Company is the sole owner of the name FourKites", as well as the Application, and all source code, object code, software, content, copyrights, trademarks, patents and other intellectual property related thereto or included therein. All suggestions, recommendations, bug-fixes, error-fixes or other communications from You to Company regarding the Application shall, upon submission to Company, be owned solely and exclusively by Company. You acknowledge and agree that the applicable supplier(s) of any third party software, music, videos and/or content included within the Application shall own all worldwide rights, title and interest in and to such third party software (and any intellectual property rights therein), subject to such suppliers license of such materials to Company. (b) Use of Posted Information. In exchange for Your use of the Application, You hereby grant to Company an unlimited, perpetual, irrevocable, fully-paid, transferable, assignable, sub- licensable, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, commercially exploit, repurpose, perform and display any and all Posted Information You submit to Company or post through the Application, alone or as part of other works in any form, media or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees. You also irrevocably grant the users of the Application the right to access and review Your Posted Information in connection with their use of the Application. 9. Confidentiality. You agree to treat as confidential all confidential information of Company, not to use such confidential information for any purpose other than to the limited extent necessary to use the Application and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, You shall use at least the same degree of care which You use to prevent the disclosure of Your own confidential information of like importance to prevent the disclosure of confidential information disclosed by Company, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. 5
10. Disclaimers. (a) No Warranties. Except as explicitly set forth herein, neither Company, its affiliates, subsidiaries or any of any such party's equity holders, directors, managers, officers, employees, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Application will be error-free, (c) as to a minimum level of uptime for the Application, (d) as to the accuracy or timeliness of any information posted within the Application, or (e) as to the results that may be obtained by You by entering into this Agreement and/or using the Application. You agree and acknowledge that the Application is licensed and/or provided hereunder on an as is basis. In addition, You hereby agree and acknowledge that: (i) Company shall not be responsible for any actions taken by any other party using the Application or reviewing any of Your Posted Information; (ii) Company does not recommend or endorse any third parties hereunder, and makes no representations or warranties whatsoever regarding any such third party; (iii) Company is not a party to any shipping or other transactions consummated or facilitated through use of the Application; (iv) Company is not responsible for any other party's compliance with applicable laws, rules or regulations (including, without limitation, any licensing requirements); (v) Company's services are administrative in nature and Company is not responsible for verifying the accuracy or veracity of any Posted Information; (vi) Company shall not, under any set of circumstances, be responsible or liable for an content, text, photographs and/or other Posted Information, including any Posted Information which may violate applicable law and/or a third party's intellectual property rights; and (vii) the Application may not function properly or as intended at times. (b) Unavailability of Application. You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet and/or the Application. While it is Company's objective to make the Application accessible at all times, the Application may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Application may operate slowly from time to time. You understand and acknowledge that due to circumstances both within and outside of the control of Company, access to the Application may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, Company shall not be liable in any way for any delay in responding to an inquiry or question forwarded by You or the effects any delay or unavailability may have on You. YOU AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE APPLICATION AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE APPLICATION. (c) Important Message about your Cellular Provider (AT&T, Sprint, T-Mobile, Verizon Wireless and others). This is not a Cellular Provider application. If you use this application, it may require your Cellular Provider to disclose your customer information, including Mobile Phone Location Information, to the application provider or some other third party. By providing your consent, you authorize your Cellular Provider to disclose your information to third parties to enable this application. Check the application's terms of use and the policies for more information about how the application will collect, access, use or disclose your information. Terms of use and other policies usually are available on the application provider's website. If you aren't comfortable with the application's policies, don't use it. You acknowledge and agree that (1) your relationship with the application provider is separate from your relationship with your Cellular Provider; (2) your Cellular Provider is not responsible for this application; and (3) 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 application or the acts or omissions of the application provider. 6
(d) Message and data rates may apply. Reply HELP to 84787for help. Reply STOP to 84787 to cancel. Up to 20 messages / month. 11. Supported Carriers. 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. 12. Limitation on Liability. COMPANY SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE APPLICATION, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN ANY EVENT, COMPANY'S TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $50. 13. Force Majeure. Company shall not be liable to You for failure or delay in performing any obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control. 14. Copyright Infringement. If You believe that Your intellectual property or work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide Company's Agent for Notice with the following information in English (Your "Notice"): 1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; 2. a description of the copyrighted work or other intellectual property that You claim has been infringed; 3. a description of where the material that You claim is infringing is located within the Application; 4. Your address, telephone number, and email address; 5. a statement by You that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; 6. a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. In some circumstances, in order to notify the individual or entity who or which provided the allegedly infringing content to which Company has disabled access, Company may forward a copy of a valid Notice including name and email address to such individual or entity. Company's Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows: By email support@fourkites.com Copyright Agent 7
15. Miscellaneous. Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles, and all disputes arising hereunder or in connection with this Agreement and/or the Application shall be resolved in the appropriate Federal or state court located solely and exclusively in Cook County, Illinois. You hereby consent to exclusive jurisdiction in Illinois, and agree not to raise any defense of forum non conviens or any similar defense. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent, employee or representative of the other party for any purpose whatsoever. This 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 You without Company's prior written consent. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this 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. Agreement Last Updated: January 15, 2016 8