By requesting or accepting goods or services from Flexport Inc., and/or its subsidiaries and affiliates (collectively, “Flexport”), the Customer agrees to the following terms and conditions of service (“Terms and Conditions”).
Flexport may from time to time change these Terms and Conditions. Any changes are effective immediately upon publication on our website at www.flexport.com/terms.
These Terms and Conditions govern the use of Flexport's Logistics Software and applications.
1.1 Application Data: shall mean any data associated with or related to the Application Services provided by Flexport to Customer (excluding any User Content or any other data managed by Flexport on behalf of other customers or with other services or offerings not included in the Application Services) including but not limited to ports, carriers, tariffs cargo manifests, invoices, price quotes to customers and the metadata surrounding the price quotes (weight, volume, geolocations, ports etc.). Notwithstanding anything to the contrary herein, all Application Data shall be considered Confidential Information of Flexport.
1.2 Application Services: shall mean the services included in, but not limited to Flexport's Freight Client Platform Core, Flexport's Client App, Flexport's Origin App, that are made available to Customer or partners via the Internet and our Site www.flexport.com or other electronic means and any Software and Application Data provided by Flexport in connection with such services.
1.3 User Content: shall mean all content, data and materials selected and provided by Customer and its Users to Flexport in electronic or hard copy formats and entered by Customer into the Application Services or Software. Notwithstanding anything to the contrary herein, all specific User Content shall be considered Confidential Information of Customer.
1.4 Platform: as part of the Services provided Customer will get access to the logistics Client Platform Core to communicate with Flexport regarding ongoing shipments, retrieve all data associated with these shipments and book freight services.
1.5 User Proposals/ Feedback: any suggestions, comments, or other feedback that Customer provides to Flexport with respect to the website, the Services, or any other Flexport product or service.
1.6 Confidential Information: shall mean, with respect to a Party hereto, (a) the terms and conditions or any other agreement executed between the parties, (b) all nonpublic information concerning the business, technology, products, services, internal structure and strategies of the disclosing Party, specifically including, without limitation, Software, Documentation, end-user materials, Intellectual Property Rights, proposals, designs, concepts, methodologies, inventions, source or object code, developments, research, programs, databases, referral sources, customers, prospective customers, inventions, developments, "know-how," procedures, financial information or licensing policies and (c) any other information clearly labeled by the disclosing party in writing as "confidential" prior to its disclosure, otherwise deemed as Confidential Information under this Agreement, or which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment under the circumstances. The following information will not be considered Confidential Information: (i) information which was in the public domain prior to its disclosure; (ii) information which becomes part of the public domain by any means other than through violation of this Agreement; (iii) information independently developed by the receiving Party without reference to the disclosing Party's Confidential Information, or (iv) information received from a third party not under any obligations of confidentiality.
2.1 Terms: These Flexport Terms and Conditions apply to the features and functions provided by Flexport Inc,. to access the API that may be used to access the Services. By accessing and using the websites or Services, Customer agrees to be bound by these Terms. These Terms come into effect on the first day the Customer uses the website or any of the Services.
2.2 Registration: In order to use many aspects of the Services, you must first complete the Flexport registration process via the website. Customer agrees: (a) to provide accurate, current and complete information about the company and customer's position within that company as part of the registration process ("Registration Data"); (b) to maintain the security of Customer's password(s); (c) to maintain and promptly update the Registration Data, and any other information provided to Flexport, and to keep it accurate, current and complete; (d) that you are responsible for maintaining the security of your account and safeguarding your password(s), and (e) that you will be fully responsible for any activities or transactions that take place using your account(s) or password(s), even if you were not aware of them.
2.3 Access to Platform: Subject to the Terms and Conditions and on the registration criteria, Flexport hereby grants to Customer exclusive, non-transferable revocable right to: (i) access and use the Services, the logistical Platform Core and its associated documentation, solely for Customer's own internal business purposes when arranging logistical services offered by Flexport; and (ii) access and use any data or reports that we provide or make available to you as part of your access and use of the Services solely in conjunction with your use of the Services.
2.4 Duration: Customer will be able the use to the Platform and the Services for the period it uses Flexport's freight services.
2.5 Users: Each User account is valid for one User only and may not be shared concurrently or otherwise by or among multiple Users. Customer may harvest and/or reassign User accounts to new Users within its organization. Users of the Platform are limited solely to Customer's employees or their suppliers.
2.6 Use Limitations: Modification, reverse engineering, reverse compiling, disassembly of or creation of derivative works incorporating the Platform, or any portion or component thereof is expressly prohibited. Except as expressly authorized by these Terms and Conditions, Customer and its Users shall not unbundle, sublicense, assign, transfer, display, distribute, rent, resell or lease the Application Services or any portion or component thereof to any third party. Furthermore the Customer may not (a) use the website or the Services to store or transmit any viruses, software routines, or other code designed to permit anyone to access in an unauthorized manner, disable, erase or otherwise harm software, hardware, or data, or to perform any other harmful actions; (b) build a competitive product or service, or copy any features or functions of the website or the Services (including, without limitation, the look-and-feel of the website or the Services); (c) interfere with or disrupt the integrity or performance of the website or the Services; (d) disclose to any third party any performance information or analysis relating to the website or the Services; (e) remove, alter or obscure any proprietary notices in or on the website or the Services, including copyright notices; (f) use the website or the Services or any product thereof for any illegal or unauthorized purpose, or in a manner which violates any laws or regulations in your jurisdiction; (g) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms that make up the Services or any software, documentation, or data relating to the Services, except to the limited extent that applicable law prohibits such a restriction; or (h) cause or permit any third party to do any of the foregoing.
2.7 Right to terminate usage: If the Customer renders the Platform unusable it may terminate usage at any given time, however this will not require Flexport to continue offering freight services.
2.8 Access after termination of the services: Customer is granted access to the Platform at least one year after the last shipment has been completed in the event the Customer chooses to cease using Flexport's freight services.
2.9 Third-party vendors: Customer understands that Flexport uses third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to provide the Services, and customer agrees that Flexport is not and will not be liable or responsible for the acts or omissions of such third-party vendors or hosting partners.
2.10 Electronic communication: By using the Software and Services the Customer consents to receiving electronic communication from Flexport for both logistical and marketing purposes.
USER CONTENT AND OWNERSHIP
3.2 Flexport will only disclose User Content to its employees, contractors, and affiliated organizations that (i) need to know that information in order to process it on Flexport's behalf or to provide the Services, and (ii) that have agreed not to disclose it to others and with whom we have contracts in place governing our relationship. Other than to its employees, contractors, and affiliated organizations, as described above, Flexport discloses User Content only when required to do so by law, or when Flexport believes in good faith that disclosure is reasonably necessary to protect the property or rights of Flexport, third parties, or the public at large.
3.3 Flexport does not claim any ownership rights in any such User Content and nothing in the Terms and Conditions will be deemed to restrict any rights that Customer may have to use and exploit Customer's User Content. Customer is aware that Customer is solely responsible for all User Content that Customer makes available through the Platform and that that data abides by the various Privacy Laws. Flexport does not have any obligation to review or scan any User Content for any purpose, including without limitation for measuring quality, filtering content, or detecting the presence of malware. Flexport makes no representations regarding the compliance of any User Content with any applicable laws or regulations.
3.4 By submitting or uploading User Content to the Platform, Customer grants Flexport a worldwide, royalty-free, and non-exclusive license (i) to use, reproduce, modify, adapt and publish that User Content for the purpose of providing the Services to you; and (ii) to create aggregations and summaries of the User Content or portions thereof and to use, disclose, and distribute such aggregations publicly to any third party in support of our business (both during the period that these Terms are in effect, and thereafter), provided that such aggregations and summaries do not directly or indirectly identify the Customer or their User Content.
3.5 Notwithstanding the foregoing, Customer may also disclose to us certain User Content, including without limitation feedback and comments, via Flexport's Platform communication tools ("User Proposals"). By submitting User Proposals to Flexport, Customer hereby grants to Flexport a royalty-free, irrevocable, perpetual, non-exclusive, unrestricted, worldwide license to use, copy, adapt, modify, sublicense, transmit, distribute, display, sell, transfer, incorporate into Flexport's products or services, create derivative works from, or otherwise exploit any such User Proposals without any compensation to Customer.
3.6 In the event Customer requests from Flexport to remove their User Content Flexport will do so taking into account its administrative obligations under law. The retention period for custom information and associated documentation in the EU and US is respectively 7 and 5 years.
INTELLECTUAL PROPERTY & TRADEMARKS
4.1 Flexport owns all rights, title and interest in and to the website and the Services, and all Intellectual Property Rights therein. The look and feel of the website and the Services, including any custom graphics, button icons, and scripts are also the property of Flexport, and Customer may not copy, imitate, or use them, in whole or in part, without Flexport's prior written consent. Flexport reserves all rights not expressly granted to Customer in these Terms, and Flexport does not grant any licenses to Customer or to any other party under these Terms, whether by implication, estoppel or otherwise, except as expressly set forth herein.
4.2 Customer acknowledges and agrees that any Flexport names, trademarks, service marks, logos, trade dress, or other branding included on the website or as part of the Services are owned by Flexport and may not be copied, imitated, or used (in whole or in part) without Flexport's prior written consent. All other trademarks, names, or logos referenced on the website or the Services "Third-Party Trademarks" are the property of their respective owners, and the use of such Third-Party Trademarks inure to the benefit of their respective owners.
5.1 Availability: Flexport will use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, except for planned downtime and unforeseen circumstances as mentioned in 6.2.
5.2 Defects: Flexport represents and warrants that, to its knowledge, the Platform is free from any material Defects. In the event of discovery of any Defect, Customer agrees to provide Flexport with sufficient detail to allow Flexport to verify and reproduce the error, and Flexport shall use commercially reasonable diligence to endeavor correct such Defect.
5.3 Prevention: With the use of multiple data centers Flexport ensures to minimize the risk of full server outage. Furthermore, regular backups are made to prevent data loss.
5.4 Continuity of service: In event of a software system failure Flexport will ensure that the freight services offered will be executed by the operational team regardless of any limitations this may entail. Continuity of the services will be safeguarded as usage of the Platform is not mandatory to fulfill its logistical obligations.
5.5 Security: Flexport will implement and maintain appropriate technical and organizational measures to protect User Content and its Software against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access ("Security Measures"). These Security Measures will have regard to the state of the art, the costs of implementation and nature, scope, context and purposes of the processing off data, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
LIMITATIONS ON SERVICES
6.1 Condition of Software: The Platform is offered "as is". As such Flexport will not enter into quantified KPI's on uptime, availability, security etc. Flexport is open to improvement suggestions but will make improvements as it deems fit.
6.2 Accessibility: Customer understands and agrees that from time to time the platform may be inaccessible or inoperable during normal business hours in the event of periodic maintenance procedures or repairs which Flexport deems necessary and may undertake. Flexport will not be liable for failure to provide access to the platform due to any emergency maintenance, any catastrophic system failure at Flexport, any failures of Customer's equipment or systems, or due to other acts outside the control of Flexport.
The Services, Flexport Software and the Documentation may be subject to export laws and regulations of the United States and other jurisdictions, and any use or transfer of the Services, Flexport Software and Documentation must be permitted under these laws and regulations. Each party represents that it is not named on any U.S. government or EU denied-party list. Customer shall not enable use of the Services in a U.S. or EU-embargoed country (currently Cuba, Iran, North Korea, Sudan, Crimea -- Region of Ukraine, Libya or Syria) or in violation of any U.S. and EU export law or regulation.
CUSTOMER ACKNOWLEDGES THAT THE WEBSITE AND THE SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND THAT YOUR USE OF THE WEBSITE AND THE SERVICES IS AT YOUR SOLE RISK. FLEXPORT DOES NOT WARRANT: (I) THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, (II) THAT THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL THAT CUSTOMER OBTAINS THROUGH THE WEBSITE OR THE SERVICES WILL MEET CUSTOMER'S EXPECTATIONS, OR (V) THAT ANY ERRORS IN THE WEBSITE OR THE SERVICES WILL BE CORRECTED. FLEXPORT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9.1 Non-Infringement: Flexport warrants that Flexport owns the Software and any software included in the Platform, including all associated Intellectual Property Rights, or otherwise has the right to grant Customer the rights for usage. Flexport warrants that, to its knowledge, the Platform does not infringe any valid and issued U.S. patents, copyrights, trademarks, trade secrets, or other proprietary rights of any third parties.
INDEMNIFICATION OF INTELLECTUAL PROPERTY
10.1 Indemnification by Flexport: Flexport shall defend, indemnify and hold harmless Customer and its officers, directors, employees, agents and representatives from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any third party alleging infringement by the Platform of any valid and issued U.S. patent, copyright, trademark or trade secret of such third party.
10.2 Indemnification by Customer: To the fullest extent possible by applicable laws Customer shall defend, indemnify and hold harmless Flexport and its subsidiaries, officers, employees, agents and representatives from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any third party arising out of or relating to: (a) these Terms & Conditions or Customer's representations, warranties or obligations hereunder; (b) Customer's and its Users' use of the Platform, including any User Content or data; (c) any unacceptable use of the Platform by Customer or its Users or through its Users' accounts, including, without limitation, any User Content or any statement, data or content made, transmitted or republished by Customer or its Users which is prohibited under applicable law or by these Terms and Conditions; (d) any intentional or negligent act or omission of Customer or its Users; or (e) Customer's or its Users' violation of any third party rights, including, without limitation, any intellectual property or privacy right.
LIMITATION OF LIABILITY
In no event will Flexport be liable to Customer or to any third party for any loss of profits, loss of use, loss of revenue, loss of goodwill, interruption of business, loss of data, or any indirect, special, incidental, exemplary, punitive or consequential damages of any kind arising out of, or in connection with these terms or Customer's use (or inability to use) any part of the website or the services, whether in contract, tort, strict liability or otherwise, even if we have been advised or are otherwise aware of the possibility of such damages.
CHANGES TO TERMS AND CONDITIONS
12.1 Flexport reserves the right to change or modify these Terms, or any of our other policies or guidelines, at any time. We will be posting the revised Terms on the Site and revising the date at the top of these Terms. Any changes or modifications will be effective from the day these Terms have been publicized. You acknowledge that your continued use of the Site or any of the Services following such notice constitutes your acceptance of the modified Terms.
12.2 Flexport reserves the right -- at any time, and without notice or liability to you -- to modify the Site or the Services, or any part of them, temporarily or permanently. We may modify the Services for a variety of reasons, including, without limitation, for the purpose of providing new features, implementing new protocols, maintaining compatibility with emerging standards, or complying with regulatory requirements.
These Terms shall be governed by and construed in accordance with the controlling laws of (i) the Netherlands, if Customer is domiciled in a country in Europe, or (ii) the United States of America and the State of California, if Customer is domiciled anywhere else, in each case excluding rules governing conflict of law and choice of law. The courts in Amsterdam, the Netherlands shall have exclusive jurisdiction to adjudicate any dispute arising out of these Terms if Dutch law applies and the Federal and state courts within San Francisco California shall have exclusive jurisdiction to adjudicate any dispute arising out of these Terms if United States and the State of California laws apply. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts and service of process being effected upon it by registered mail sent to the Legal Notice address provided by such party under these Terms. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to these Terms nor to any dispute or transaction arising out of these Terms.
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