White Label Platform License Agreement
Last Update: May 1, 2019
This FAST Applications Ltd. White Label Platform License Agreement between FAST Applications Ltd. with principal offices at 9 Andrei Sakharov, Suite 817, MATAM Park, Israel 3508409, (“Company”) and the Customer (“Customer”) contains the terms which govern the use of the Freightools Platform.
WHEREAS, Company has developed a proprietary electronic platform to digitize freight business that can be used to provide online services to clients for online quotations, rate management, online bookings and track & trace (“Clients”), and
WHEREAS, Customer wishes to license the Freightools Platform as a White Label Platform (the “Platform”) to provide Clients with online quotations, rate management, online bookings and track & trace.
NOW, THEREFORE, acknowledging the receipt of adequate consideration and intending to be legally bound, the parties agree as follows:
1. Grant of Limited License.
1.1. In General. Company hereby grants to Customer a limited, non-exclusive, non-transferable license to use the Freightools Platform during the Term, solely for the operation of the Platform (the “License”). The License provides Customer with the number of user seat licenses (“AAU” – Active Admin User) indicated in the online upgrade page (“Upgrade Page”), as the same may be modified from time to time upon online update by Customer. Additional user seat fees beyond those indicated in an Upgrade Page will be paid by Customer in accordance with Company’s current pricing.
1.2. White Label Branding. Platform branding includes incorporation of Customer’s name and logo and skinning of the site in Customer’s selected primary color. Customer is responsible for clearing any trademark or other intellectual property concerns. A copyright notice with the Company’s name and Terms of Service shall appear on the White Label Platform registration form. Company may collect, use, share, sell and store data made available via the White Label Platform solely in connection with the services hereunder. Any other use by the Company, including sharing or selling data, shall require Customer’s prior written consent.
1.3. Restrictions. Customer shall not (i) decompile, reverse engineer, or otherwise attempt to obtain the source code for the Freightools Platform; (ii) sublicense or allow any third party (other than suppliers and clients, who must be made aware of and bound to the terms of this Agreement) to use the Freightools Platform, except pursuant to the normal operation of the Platform; (iii) use the name or proprietary logo(s) of Company without Company’s prior written consent; (iv) use the Freightools Platform for any purpose other than the operation of the Platform; (v) use the Freightools Platform in a manner that interferes with the use of Freightools Platform by Company, its other customers, Clients or Suppliers; (vi) commence development of an electronic platform for the purpose of offering such electronic platform to other portals, in competition with the Freightools Platform; or (vii) use the Platform for illegal or fraudulent use.
1.4. Incorporation of Freightools.com Online Terms & Conditions. Usage of the Freightools Platform is predicated on the online Terms & Conditions governing Clients and Suppliers found at https://www.freightools.com/terms and https://www.freightools.com/privacy. Company acknowledges that it has read and agrees to be bound by these terms and will properly describe to users all capabilities and limitations of the Freightools Platform. In the event of any conflict between the online Terms & Conditions governing Clients and Suppliers and this Agreement, this Agreement shall govern.
2. Customer’s Obligations. Customer shall do the following:
2.1. Supervise Platform Users. Customer shall monitor all users of the Platform to ensure proper use of the Freightools Platform in accordance with these terms and the online Terms & Conditions.
2.2. Comply with Applicable Laws. Customer shall comply with all applicable laws, rules and regulations.
3.1. In General. All amounts contemplated under this Agreement (including but not limited to onboarding, payments, licensing or training fees, and the like) shall be in U.S. Dollars (USD). Customer is to pay Company the license fee, onboarding fees, and any other fees for services ordered (such as Customization Fees, Customer Success Support Fees, training, etc.) as billed and as set forth in the Upgrade Page.
3.2. Taxes. The fees described in this Agreement are exclusive of all federal, state, municipal, or other government excise, sales, use, value-added, gross receipts, personal property, occupational, or other taxes in the United States or the Exclusive Territory now in force or enacted in the future, and Customer shall calculate and pay any such tax (excluding taxes on Company’s net income) that may be due or owing, now or at any time in the future.
4. Platform Funding
4.1. Prepayment. For the initial Term of this Agreement, all Fees due shall be paid via Customer’s company check or, if approved by Company, via Customer’s valid and authorized credit card account.
5. Functionality of Platform.
5.1. Initial Functionality. Company may have demonstrated the Freightools Platform to Customer (the “Demonstration Version”). At the time the Platform is made available to Customer, the Platform will have substantially the same “look and feel,” features, and functionality of the Demonstration Version and no fewer features and no less functionality than the base versions of the comparable product delivered to other customers of Company, except for customized features and functionality separately specified and purchased by other customers.
5.2. Future Functionality. Following delivery of the Platform to Customer, Company shall make such additional features and functionality as Company makes available to its customers generally without charge and without the need for consent of Customer. Company shall give Customer notice of such additional features and functionality if they are material to the operation of the Platform.
6. Customer’s Obligations.
Customer shall (i) use the Freightools Platform and Platform only in an operating environment (e.g., hardware and software) approved by Company, (ii) install any software updates recommended by Company, and (iii) operate the Platform and perform under this Agreement in accordance with all applicable laws and regulations, including but not limited to securities, privacy, and consumer protection laws. Customer represents and warrants that it has the authorization and permission to add any information it collects, including the information of Clients, into the Platform, and that all Clients will be made to agree to the Terms & Conditions of the platform. Customer understands and agrees that it may not issue any press release or make any public announcement(s) relating to this Agreement or the relationship established by this Agreement without the express prior written consent of Company; however, Customer agrees that Company may make reasonable limited references to Customer’s participation with Company on its corporate website or in its marketing materials (which may include Customer’s name, logo, publicly available Content samples, screen captures of Customer’s branded website, and aggregated data from launched campaigns).
7.1. Limited Performance Warranty. Company warrants that the Freightools Platform will perform substantially as demonstrated in the Demonstration Version and will be free of material errors or defects, and that all Services will be performed in a good and workmanlike manner. In the event Customer believes that Company is in violation of this limited performance warranty, Customer shall notify Company in writing and Company shall use reasonable commercial efforts to correct any error or defect.
7.2. Warranty of Non-Infringement.
7.2.1. In General. Company warrants that Customer’s use of the Freightools Platform as anticipated by this Agreement will not infringe on intellectual property rights of any third party. If a claim is made that Customer’s use of the Freightools Platform infringes on the intellectual property rights of a third party then Company will, at its sole expense and as Customer’s sole remedy, defend against such claim and pay any final judgment against Customer, provided that Customer promptly notifies Company of any such claim in writing and Company is given sole control over the defense and settlement of such claim. Company may, without the knowledge or consent of Customer, agree to any resolution of the dispute that does not require on the part of Customer a payment or an admission of wrongdoing. Without limiting the preceding sentence, Company may (i) seek to obtain through negotiation the right of Customer to continue using the Freightools Platform; (ii) rework the Freightools Platform so as to make it non-infringing; or (iii) replace the Freightools Platform, as long as the reworked or replacement Freightools Platform does not result in a material adverse change in the “look and feel” or operational characteristics of the Freightools Platform.
7.2.2. Exceptions. The foregoing warranty shall not apply to infringement caused by (i) Customer’s modification or use of the Freightools Platform other than as contemplated by the Agreement; (ii) Customer’s failure to use corrections or enhancements made available by Company to the extent that such corrections or enhancements would make the Freightools Platform non-infringing; or (iii) information, specification or materials provided by Customer or third party acting for Customer which is the cause of such infringement claim.
7.3. Compliance with Laws. Company shall use commercially reasonable efforts to conduct its business, and develop the Freightools Platform, in compliance with all applicable Israeli laws, rules and regulations.
7.4. No Other Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN THE ABOVE SECTIONS, THE FREIGHTOOLS PLATFORM, INCLUDING ANY ACCOMPANYING MANUALS AND OTHER MATERIALS, AND THE SERVICES, ARE PROVIDED BY THE COMPANY “AS IS,” WITHOUT WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ANY WARRANTY THAT THE FREIGHTOOLS PLATFORM WILL BE ERROR- FREE OR OPERATE WITHOUT INTERRUPTION, OR THAT THE FREIGHTOOLS PLATFORM WILL MEET THE CUSTOMER’S REQUIREMENTS, AND ANY WARRANTIES IMPLIED BY LAW, BY THE COURSE OF DEALING BETWEEN THE PARTIES, OR OTHERWISE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
8. Confidentiality; Employees.
8.1.1. Included Information. For purposes of this Agreement, the term “Confidential Information” means all confidential and proprietary information of a party, including but not limited to (i) financial information, (ii) business and marketing plans, (iii) the names of employees, owners, and third party contractors to the extent such is not public information, (iv) the names, email addresses, and other personally-identifiable information of users of the Platform, (v) security codes, and (vi) all documentation provided by Company.
8.1.2. Excluded Information. For purposes of this Agreement, the term “confidential and proprietary information” shall not include information which, as can be proven by written record, (i) was or becomes generally available to the public other than as a result of a disclosure by the Receiving Party (as defined below) or its directors, officers, employees, agents, contractors or advisors (“Representatives”); (ii) was or becomes available to the Receiving Party on a non- confidential basis from a source other than the Disclosing Party (as defined below) or its advisors, provided that such source is not bound by a confidentiality obligation with Disclosing Party; (iii) was within the Receiving Party’s possession prior to it being furnished to the Receiving Party by or on behalf of the Disclosing Party provided the source of such information was not bound by a confidentiality obligation owed to the Disclosing Party with respect thereto; or (iv) was developed by the Receiving Party independent of any use or reference to the Confidential Information.
8.1.3. Confidentiality Obligations. During the Term and at all times thereafter, neither party shall disclose Confidential Information of the other party or use such Confidential Information for any purpose other than in furtherance of this Agreement. Without limiting the preceding sentence, each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses to safeguard its own Confidential Information. Notwithstanding the foregoing a party may disclose Confidential Information (i) if required to do so by legal process (i.e., by a subpoena), provided that such party shall notify the other party prior to such disclosure so that such other party may attempt to prevent such disclosure or seek a protective order; or (ii) to any applicable governmental authority as required in the operation of such party’s business, and even then, limited to no more than the minimum information required.
8.2. Injunctive Relief. The parties acknowledge that a breach of this Section will cause the damaged party great and irreparable injury and damage, which cannot be reasonably or adequately compensated by money damages. Accordingly, each party acknowledges that the remedies of injunction and specific performance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies.
9. Responsibility for Operation of Platform.
The parties agree that Customer, and not Company, is primarily responsible for the operation of the Platform. The role of Company is only to provide the Freightools Platform and the Services. Company does not act as nor take on the responsibility or liability of a fiduciary, business or legal advisor, or co-venture. Customer is solely responsible for ensuring that it operates the Platform in accordance with applicable laws, for monitoring the content displayed on the Platform, and for establishing the terms of its relationships with users of the Platform. Company is not responsible for any information or content displayed on or transmitted through the Platform.
10. Term and Termination.
10.1. The term of this Agreement shall be for the period indicated in an Upgrade Page (the “Term”) and, unless earlier terminated for cause in accordance with this Agreement, will continue for the duration of any Term or renewal term set forth in the Upgrade Page. Except as otherwise specified in the applicable Upgrade Page, the Term shall automatically renew for twelve-month periods, unless either party gives the other notice of non-renewal at least thirty (30) days before
the end of the relevant Term.
10.2. Termination for Cause. This Agreement may be terminated at any time if either party fails to perform any of its material obligations hereunder and such failure continues for fifteen (30) days following written notice from the non-breaching party. For these purposes (i) any obligation of Customer to pay any amount to Company shall be treated as a material obligation, and (ii) if Customer fails to make a required payment by the due date and fails to remedy such non-payment in 30 days, Company may, in its discretion, immediately terminate this Agreement and any access to the Platform without giving written notice of such failure or any additional failure.
10.3. Effect of Termination. Upon any termination of this Agreement, the License shall terminate, and Customer shall have no further rights in the Platform or the Freightools Platform. Customer is still obligated to pay Company all amounts owed for the remaining term pursuant to this Agreement. All users that sign up under the Freightools Platform through the Platform automatically continue as users on the Freightools Platform.
11. Ownership of Intellectual Property of Company.
Company is the exclusive owner of the Freightools Platform and all of the intellectual property rights associated with the Freightools Platform, including software and copyrights, even if Company incorporates into the Freightools Platform suggestions made by Customer. Customer shall not receive any form of compensation for ideas, modifications, suggestions or improvements made to the Freightools Platform.
12. Limitation of Claims and Damages.
12.1. Limitation of Claims. THE COMPANY SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES (EVEN IF THIS AGREEMENT IS TERMINATED) FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR BUSINESS ADVANTAGE), WHETHER BASED UPON A CLAIM OR ACTION OF TORT, CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, CONTRIBUTION, INDEMNITY OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. Limitation of Damages. THE COMPANY’S TOTAL LIABILITY UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OR FORM OF ACTION, AND WHETHER BEFORE OR AFTER ITS TERMINATION, SHALL NOT EXCEED THE TOTAL OF ALL AMOUNTS PAID TO THE COMPANY BY THE CUSTOMER.
12.3. Exceptions. The limitations set forth in Sections 12.1 and 12.2 shall not apply to any claims arising (i) under Section 7.2 (concerning Company’s warranty of non-infringement), or (ii) under Section 8 (concerning each party’s confidentiality obligations).
13. Indemnification by Customer.
13.1. Obligation to Indemnify. Customer will indemnify and hold harmless Company, its licensors, service providers, and their respective affiliates, managers, agents and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fee, from third party claims (including claims made by Clients) arising from (i) any materials provided, published, or disseminated by Customer, (ii) Customer’s acts or omissions in the operation of the Platform (including claims of failure to make payments), including a breach of Customer’s obligations or covenants contained in this Agreement, and (iii) any acts or omissions of Clients introduced to the system by Customer or in connection with Customer’s transactions.
13.2. Notice and Defense of Claims. An indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any claim for which it believes it is entitled to indemnification under the preceding paragraph. Indemnifying Party may, but shall not be required to, assume control of the defense and settlement of such claim provided that (i) such defense and settlement shall be at the sole cost and expense of Indemnifying Party (ii) Indemnifying Party shall be permitted to control the defense of the claim only if Indemnifying Party is financially capable of such defense and engages the services of a qualified attorney, each in the reasonable judgment of the Indemnified Party; (iii) Indemnifying Party shall not thereafter withdraw from control of such defense and settlement without giving reasonable advance notice
to Indemnified Party; (iv) Indemnified Party shall be entitled to participate in, but not control, such defense and settlement at its own cost and expense; (v) before entering into any settlement of the claim, Indemnifying Party shall be required to obtain the prior written approval of Indemnified Party, which shall be not unreasonably withheld, if pursuant to or as a result of such settlement, injunctive or other equitable relief would be imposed against Indemnified Party; and (vi) Indemnifying Party will not enter into any settlement of any such claim without the prior written consent of Indemnified Party unless Indemnifying Party agrees to be liable for any amounts to be paid to the third party pursuant to such settlement and is financially able to do so.
14.1. Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in writing and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of such right or remedy generally.
14.2. Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal counsel and shall be deemed to be given by electronic mail with transmission acknowledgment, to if to Company, or to the email address and point of contact on the Company Profile to Customer, or to such other email address or addresses as the parties may designate from time to time by notice satisfactory under this Section.
14.3. This Agreement is governed by the laws of Israel, without application of its principles of conflicts of law. The Parties irrevocably consent to the exclusive jurisdiction of the competent courts in Tel Aviv, Israel, to adjudicate all disputes arising from or related to this Agreement to the exclusion of the jurisdiction of any other court; however, Fast shall retain the right to institute proceedings, including interlocutory and/or injunctive relief, in any other territory.
14.4.1. In General. The following procedure shall be followed in the event of a dispute arising from this Agreement:
(a) The principals (C-Level employee) of Company and Customer shall speak directly concerning the dispute in an attempt to reach a resolution.
(b) If the principals are unable to resolve the dispute, then within five (5) business days they shall exchange written summaries of their respective positions, containing such information and/or proposals as they may determine in their sole discretion, and thereafter meet or speak by telephone to attempt to resolve the dispute. Such summaries shall be deemed in the nature of settlement discussions and shall not be admissible in any further proceeding.
(c) If the principals are still unable to resolve the dispute, they shall participate in mediation conducted by a single neutral mediator chosen by the parties.
(d) If the principals are unable to resolve the dispute in mediation, they may file a lawsuit in accordance with the terms of this Agreement.
14.4.2. Exceptions. This Section shall not apply to (i) more than one (1) dispute during any six (6) month period, (ii) actual or alleged violations of the confidentiality provisions herein, (iii) situations in which the failure to immediately file a lawsuit would materially prejudice the interests of either party, or (iv) any dispute following the inability of the parties to resolve a previous dispute by following such procedures.
14.5. Assignment. Customer may not assign its rights or obligations under this Agreement without the prior written consent of Company. Notwithstanding the preceding sentence, Customer may assign its interest in this Agreement to an entity acquiring (by sale, merger, reorganization, or otherwise) substantially all of the transferor’s assets or business, provided that (i) the transferee agrees to assume and perform all obligations of the transferor for periods following the transfer, (ii) the transferor remains liable for all obligations prior to the transfer, and (iii) the transferee shall not be engaged in the business of developing, marketing, or supporting an electronic platform or related services in competition with the Freightools Platform.
14.6. Dispute Fees and Costs. In the event of a dispute arising under this Agreement, each party shall be responsible for its own attorneys’ fees and costs. Notwithstanding the foregoing, any action instituted by Company for recovery of unpaid amounts due under this Agreement, and all recovery costs to collect on such debt (including collection agencies, filing fees, and attorney’s fees) shall be the responsibility and obligation of Customer.
14.7. Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or against any party. The parties acknowledge that each party and its counsel have reviewed or had the opportunity to review and participate in the drafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to the interpretation of this Agreement.
14.8. Force Majeure. Neither party shall be entitled to recover damages or terminate this Agreement by virtue of any delay or default in performance by the other party (other than a delay or default in the payment of money) if such delay or default is caused by Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected; provided that the party experiencing the difficulty shall give the other prompt written notice following the occurrence of the cause relied upon, explaining the cause and its effect in reasonable detail. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
14.9. Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original.
14.10. Signature by Facsimile or Email. An original signature transmitted by facsimile or email shall be deemed to be original for purposes of this Agreement.
14.11. No Third-Party Beneficiaries. This Agreement is made for the sole benefit of the parties. No other persons shall have any rights or remedies by reason of this Agreement against any of the parties or shall be considered to be third party beneficiaries of this Agreement in any way.
14.12. Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of each party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.
14.13. Titles and Captions. All article, section, and paragraph titles, and captions contained in this Agreement, are for convenience only and are not deemed a part of the context hereof.
14.14. Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons may require.
14.15. Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days, except that any payments, notices, or other performance falling due on a Saturday, Sunday, or government holiday shall be considered timely if paid, given, or performed on the next succeeding business day.
14.16. Entire Agreement. This Agreement constitutes the entire agreement between Company and Customer with respect to the subject matter contained herein and supersedes all prior agreements and understandings. In the event of any conflict between similar provisions of the main body of this Agreement and any exhibits, schedules, appendices, etc., this Agreement shall take precedence. Modifications and amendments to this Agreement, including any exhibits, schedules, statements of work, appendices and other attachments, shall be enforceable only if they are in writing and are signed by authorized representatives. If a court or arbitrator finds any provision of this Agreement to be invalid or unenforceable under applicable law, the remainder of the agreement shall remain in full force and effect and shall be interpreted so as best to carry out the parties’ intent. This Agreement controls the relationship between the parties without evidence of either party’s signature, by virtue of its incorporation via reference or electronic link in a statement of work, insertion order, or the like.