Flexport Software Terms & Conditions

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.

Flexport Privacy Policy: www.flexport.com/privacy.

These Terms and Conditions govern the use of Flexport's Logistics Software and applications.

1. DEFINITIONS

1.1 Company: shall mean Flexport, Inc., its subsidiaries, successors or assigns, related companies, including, without limitation, Crux Systems, Inc., other authorized agents and/or representatives.

1.2 Application Data: shall mean any data associated with or related to the Services provided by Company to Customer (excluding any User Content or any other data managed by Company on behalf of other customers or with other services or offerings not included in the 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 Company.

1.3 Services: shall mean the services included in, but not limited to Company's Freight Client Platform, Company's Client App including reports and analytics, Company's Origin App, Company's Carbon Program offerings including services that provide for carbon emission analytics or carbon offsets, and services offered via Crux Systems, Inc. at www.cruxsystems.com, including but not limited to services that track in-transit shipments (the “Crux Services”), that may be made available to Customer or partners via the Internet and our websites www.flexport.com and www.cruxsystems.com (collectively referred to as “the Website”), or other electronic means, including APIs, and any software and Application Data provided by Company in connection with such services. As part of the Services provided, Customer may receive access to Company's Freight Client Platform (the “Platform”) to communicate with Company regarding ongoing shipments, retrieve all data associated with these shipments and book freight services. The Platform is not available to Customers using Crux Services only.

1.4 User Content: shall mean all content, data and materials selected and provided by Customer and its Users to Company in electronic or hard copy formats and entered by Customer into the Services or software. Notwithstanding anything to the contrary herein, all specific User Content shall be considered Confidential Information of Customer.

1.5 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 these Terms, 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 these Terms; (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.

1.6 User Proposals / Feedback: shall mean any suggestions, comments, or other feedback that Customer provides to Company with respect to the Website, the Services, or any other Company product or service.

2. SOFTWARE USAGE

2.1 Terms: By accessing and using the Services, Customer agrees to be bound by these Terms. These Terms come into effect on the first day that Customer uses any of the Services.

2.2 Registration: In order to use many aspects of the Services, Customer must first complete a registration process via the Website. Customer agrees: (a) to provide accurate, current and complete information about their company and Customer's position within that company, including but not limited to a valid email address, and their full legal name, 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 Company, and to keep it accurate, current and complete; (d) that Customer is responsible for maintaining the security of Customer’s account and safeguarding password(s), and (e) that Customer will be fully responsible for any activities or transactions that take place using their account(s) or password(s), even if they were not aware of them. Customer must notify Company immediately of any breach of security or unauthorized use of Customer's account. Although Company will not be liable for Customer’s losses caused by any unauthorized use of Customer’s account, Customer may be liable for the losses of Company or others due to such unauthorized use.

2.3 Access to the Services: Subject to these Terms and registration criteria, Company hereby grants to Customer a limited non-exclusive, non-transferable, non-sublicensable, revocable right to: (i) access and use the Services, including but not limited to the Platform, the Website, APIs and associated documentation and software, solely in conjunction with Customer's own internal activities to which the Services relate or apply; 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: For Crux Services, Customer will be able to access www.cruxsystems.com pursuant to the Service Plan for which it has subscribed. For all other Services, Customers will be able to access such Services for the period such Services are utilized or as otherwise communicated by Company.

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 Services 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 Services, or any portion or component thereof is expressly prohibited. Except as expressly authorized by these Terms, Customer and its Users shall not unbundle, sublicense, assign, transfer, display, distribute, rent, resell or lease the Services or any portion or component thereof to any third party. Furthermore, Customer may not (a) use 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 Services (including, without limitation, the look-and-feel of the Services); (c) interfere with or disrupt the integrity or performance of the Services; (d) disclose to any third party any performance information or analysis relating to the Services; (e) remove, alter or obscure any proprietary notices in or on the Services, including copyright notices; (f) use 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; (h) to monitor the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes; or (i) cause or permit any third party to do any of the foregoing.

2.7 Right to terminate usage: Company reserves the right to deny or revoke access to the Services, or any part thereof, or to otherwise terminate a Customer’s access to the Services, at any time at our sole discretion, with or without cause and without notice to Customer subject to these Terms.

2.8 Access after termination of the Services: For Customers of Company’s freight services, Customer will be granted access to the Platform for at least one year after the last shipment has been completed in the event Customer chooses to cease using Company's freight services.

2.9 Third-party vendors: Customer understands that Company 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 Company 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 Services, Customer consents to receiving electronic communication from Company for both logistical and marketing purposes.

3. CRUX SERVICES

3.1 Crux Services. If Customer subscribes to Crux Services, such services will be made available based on the usage level specified in the subscription plan. Customer agrees to pay the amount due for each subscription period. Current pricing and available subscription periods are set forth at https://info.cruxsystems.com/plans or in other agreements that Crux Systems enters into with Customer (“Service Plan”). By subscribing to the Crux Services, Customer is responsible for all fees due for the entire subscription period, even if Customer cancels the subscription prior to the end of the subscription period. Payment is due at the commencement of the subscription period.

3.2 During the subscription period and subject to Customer’s compliance with these Terms, Customer will have a limited right to access and use the Crux Services consistent with the Service Plan(s) subscribed to, together with any and all other applicable services offered thereunder for Customer’s internal business purposes only.

4. USER CONTENT AND OWNERSHIP

4.1 Customer retains ownership rights to their registration data, user logs, configuration settings and any other data contributed by Customer in connection with the Services ("User Content"). By making available any User Content through the Services, Customer hereby grants to Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to use, copy, adapt, modify, and otherwise process User Content for the purposes of providing and improving the Services for all Company users. Company does not generally view or disclose Customer's User Content. Occasionally Company may need to view User Content in connection with servicing the Website. Company may also perform statistical analyses on User Content in connection with developing or optimizing our Services. The use thereof is further explained in our privacy policy.

4.2 Company 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 Company'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, Company discloses User Content only when required to do so by law, or when Company believes in good faith that disclosure is reasonably necessary to protect the property or rights of Company, third parties, or the public at large.

4.3 Company does not claim any ownership rights in any such User Content and nothing in these Terms 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 Services, and that that data abides by all applicable privacy laws. Company 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. Company makes no representations regarding the compliance of any User Content with any applicable laws or regulations.

4.4 By submitting or uploading User Content to the Services, Customer grants Company 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 Customer; 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.

4.5 Notwithstanding the foregoing, Customer may also disclose to us certain User Content, including without limitation feedback and comments, via Company's Services ("User Proposals"). By submitting User Proposals to Company, Customer hereby grants to Company a royalty-free, irrevocable, perpetual, non-exclusive, unrestricted, worldwide license to use, copy, adapt, modify, sublicense, transmit, distribute, display, sell, transfer, incorporate into Company's products or services, create derivative works from, or otherwise exploit any such User Proposals without any compensation to Customer.

4.6 In the event Customer requests from Company to remove their User Content, Company 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.

5. INTELLECTUAL PROPERTY & TRADEMARKS

5.1 Company owns all rights, title and interest in and to the Services, and all Intellectual Property Rights therein. The look and feel of the Services, including but not limited to any custom graphics, button icons, and scripts are also the property of Company, and Customer may not copy, imitate, or use them, in whole or in part, without Company's prior written consent. Company reserves all rights not expressly granted to Customer in these Terms, and Company 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.

5.2 Customer acknowledges and agrees that any Company names, trademarks, service marks, logos, trade dress, or other branding included on the Website or as part of the Services are owned by Company, unless otherwise noted, and may not be copied, imitated, or used (in whole or in part) without Company's prior written consent. All other trademarks, names, or logos referenced on the Website or the Services as "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.

6. SERVICE GUARANTEES

6.1 Availability: Company will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime and unforeseen circumstances as mentioned in 7.2.

6.2 Defects: Company represents and warrants that, to its knowledge, the Services are free from any material defects. In the event of discovery of any defect, Customer agrees to provide Company with sufficient detail to allow Company to verify and reproduce the error, and Company shall use commercially reasonable diligence to endeavor to correct such defect.

6.3 Prevention: With the use of multiple data centers Company ensures to minimize the risk of full server outage. Furthermore, regular backups are made to prevent data loss.

6.4 Continuity of Freight Services: In the event of a software system failure, Company 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.

6.5 Security: Company will implement and maintain appropriate technical and organizational measures to protect User Content 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 of data, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.

7. LIMITATIONS ON SERVICES

7.1 Condition of Software: The Services are offered "as is". As such, Company will not enter into quantified KPIs on uptime, availability, security etc. Company is open to improvement suggestions but will make improvements as it deems fit.

7.2 Accessibility: Customer understands and agrees that from time to time the Services may be inaccessible or inoperable during normal business hours in the event of periodic maintenance procedures or repairs which Company deems necessary and may undertake. Company will not be liable for failure to provide access to the Services due to any emergency maintenance, any catastrophic system failure at Company, any failures of Customer's equipment or systems, or due to other acts outside the control of Company.

8. EXPORT COMPLIANCE

The Services, Company Software, and Documentation may be subject to export laws and regulations of the United States and other jurisdictions, and any use or transfer of the Services, Company 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.

9. DISCLAIMER

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. COMPANY 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. COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

10. WARRANTIES

Non-Infringement: Company warrants that Company owns the Software and any software included in the Services, 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 Services do not infringe any valid and issued U.S. patents, copyrights, trademarks, trade secrets, or other proprietary rights of any third parties.

11. INDEMNIFICATION OF INTELLECTUAL PROPERTY

11.1 Indemnification by Flexport: Company 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 Services of any valid and issued U.S. patent, copyright, trademark or trade secret of such third party.

11.2 Indemnification by Customer: To the fullest extent possible by applicable laws Customer shall defend, indemnify and hold harmless Company 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 or Customer's representations, warranties or obligations hereunder; (b) Customer's and its Users' use of the Services, including any User Content or data; (c) any unacceptable use of the Services 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; (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.

12. LIMITATION OF LIABILITY

In no event will Company 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 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.

13. LINKS TO THIRD-PARTY WEBSITES OR RESOURCES

The Services may contain links to third-party websites or resources. Company provides these links only as a convenience and is not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. Customer acknowledges sole responsibility for, and assume all risk arising from, Customer’s use of any third-party websites or resources.

14. CHANGES TO TERMS AND CONDITIONS

14.1 Company reserves the right to change or modify these Terms, or any of our other policies or guidelines, at any time. Company will provide notice by posting the updated Terms on Company’s Website and revising the date at the bottom of these Terms. Any changes or modifications will be effective from the day these Terms have been published at www.flexpot.com/terms and www.cruxsystems.com. You acknowledge that your continued use of the Services following such notice constitutes your acceptance of the modified Terms.

14.2 Company reserves the right -- at any time, and without notice or liability to you -- to modify the Services, or any part of them, temporarily or permanently. Company 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.

15. PRIVACY POLICY

Company will process all personal information in accordance with its privacy policy available at https://www.flexport.com/privacy/ and https://cruxsystems.com/Privacy/. By using the Services, you consent to our collection, use, and disclosure of information as set forth in our privacy policy. We may update that policy from time to time.

16. GOVERNING LAW

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 the United States of America 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 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

17. LIMITATIONS ON SERVICES AND THIRD-PARTY RELATIONSHIPS.

Company is not a party to any relationships or agreements between Customer and any third parties for the performance of any duties between the Customer and such third parties, and does not have control over and disclaims all liability for the quality, timing, legality, failure to provide, or any other aspect whatsoever of any professional duties performed or promised by Customer or such third parties.

18. GENERAL

18.1 No Waiver. The failure of Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision and shall not guarantee that Company will repeat any such actions in the future.

18.2 Severability. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give appropriately valid effect to the intention of these Terms as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.

18.3 Assignment. This Agreement and any rights granted to Customer under these Terms may not be transferred or assigned by Customer, in whole or in part, whether voluntarily, by operation of law, or otherwise, without our prior written consent and any such attempted assignment or transfer shall be null and void. Subject to the foregoing, these Terms will enure to the benefit of and be binding upon the respective successors and permitted assigns of Customer and Company. These Terms may be assigned or novated by Company at Company’s sole discretion.

[Revised June 18, 2020]

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