Application Developer & API Agreemen

Effective Date: November 9, 2022
Last Modified: November 9, 2022

These terms and conditions (the “API Licence”) for the API constitute a contract between you (“you” or the “Developer”) and Freightcom Inc. (“Company”, “we,” “us,” “our”).

1. Acceptance of the API License

• By either by accessing or using the Company’s API, or authorizing or permitting any Person to access or use the API, you agree to be bound by this API Licence, and you hereby expressly represent that you have:
  
  (a)  the authority to bind your corporation as further described in section (2); and
  (b) electronically” accepted this API Licence pursuant to the Electronic Commerce Act, 2000, S.O. 2000, c. 17, as amended from time to time, and its regulations, or any other applicable legislation or regulations;
  (c) carefully read, understand, accept, and agree to be bound by, this API Licence, as well as the Other Terms (described further in section (1)(iv)).
  
  
• If you do not accept this API Licence or if you do not have the authority to bind your corporation as further described in section (2), do not proceed to use our API.
• We reserve the right in our sole discretion to revise, modify, and update this API Licence from time to time. Any and all such modifications are effective immediately upon posting and apply to all access to and continued use of our API. You agree to periodically review this API Licence in order to be aware of any such modifications and your continued use shall be your acceptance of this API Licence.
  
  

2. Authority to Bind the Company

1. “API” means an application programming interface that allows your Application to interact directly with the data on any of the Company’s applications (i.e., Freightcom or ClickShip), and any accompanying or related documentation, source code, SDKs, executable applications and other materials made available by the Company to you

2. “API Data” means all electronic data, text, messages, communications or other materials submitted to and transmitted in connection with the use of the API, including but not limited to, Personal Data.
   
   
3. “Application” means the software-as-a-service or other type of online platform or website operated by you that connects to the API.
   
   
4. “Delete” means to remove or obliterate API Data such that it cannot be recovered or reconstructed.
   
   
5. “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) industrial designs and industrial design registrations; (f) Trade Secrets; and (g) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection under the Laws of any jurisdiction in any part of the world.
   
   
6. “Other Terms” means the additional terms and conditions, such as the Terms of Service (available at your customer dashboard), the Terms of Use, the Privacy Policy, and (if applicable to you) Freightcom Insurance Terms.
   
   
7. “Patents” means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates and patent utility models).
   
   
8. “Person” means any individual, partnership, corporation, trust, unlimited liability company, unincorporated organization, association, governmental authority or any other entity.
   
   
9. “Personal Data” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual;
   
   
10. “Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.
    
    
11. “Trademarks” means all rights in and to Canadian and foreign trademarks, trade dress, trade and business names, brand names, logos, design rights, corporate names, and domain names and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

4. Purpose and License

1. Company’s Licence Grant. Subject to the terms and conditions of Your Agreement, the Company hereby grants you a non-exclusive, non-sublicenseable, and non-transferable licence and right to use and make calls to the API to develop, implement, integrate, access, deploy, use and integrate the API during the Term solely for the purposes provided for in Your Agreement. The licence grated to you in this section 4(a) of this API Licence is conditional upon the Use Restrictions set out in section (4)b) and section 6).
2. Use Restrictions. You shall not use the API for any purposes beyond the scope of the licence granted in this API Licence or Your Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, You shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the API, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the API; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the API, in whole or in part (iv) create any derivative works from or sublicense any rights in the API, unless otherwise expressly authorized in writing by Licensor; (v) remove any proprietary notices from the Company API; (vi) use the Company API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vii) give access to API Data to other non-approved entities not explicitly authorized under the API Licence or Your Agreement without the Company’s prior written consent, either via your own application programming interfaces with such non-approved entities or other connective technologies (XML, Webhooks, etc.); or (viii) query the API for data collection purposes and/or for monetization of queried data.
   
   
3. Reservation of Rights. The Company reserves all rights not expressly granted to You in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to You or any third party any intellectual property rights or other right, title, or interest in or to the Company’s API.
   
   
4. Your Licence Grant. You grant to the Company a non-exclusive, worldwide, fully paid-up, royalty-free, transferable, sub-licensable, irrevocable and perpetual license, for the duration of the Term (as defined in Your Agreement) to market, sell, distribute, use, perform, and display your Application, and you further grant to the Company a non-exclusive, worldwide, fully paid-up, royalty-free license, during the Term, to use your name, the Application and associated logos (collectively, “Your Marks”) solely to enable the Company to exercise its rights and perform its obligations under this API Licence. Any use of Your Marks shall be in accordance with your reasonable trademark usage policies if such policies are communicated to the Company. to implement, use, modify, commercially exploit, incorporate into any of the Company’s products or services and/or otherwise use in any manner any suggestions, enhancement requests, recommendations or other feedback the Company receives from you.
   
   

5. Ownership. Subject to the limited licenses expressly provided in this API Licence, nothing in this API Licence transfers or assigns to the Company any of your Intellectual Property Rights in its APIs or your Marks or other technology, and nothing in this API Licence transfers or assigns to you any of the Company’s Intellectual Property Rights in the Services, the API, the Company Marks, or the Company’s other technology or the respective Intellectual Property Rights in any API Data of the Company or its Customers or End-Users. Subject to the express rights and licences granted by the Company in this Agreement, You acknowledge and agree that:

   1. any and all the Company's Intellectual Property Rights are the sole and exclusive property of the Company or its licensors;

   2. You shall not acquire any ownership interest in any of the Company's Intellectual Property Rights under this Agreement;

   3. The Company is the licensor of the API and you are the Licensee.

   
   

   Both you and the Company shall maintain all rights, title and interest in and to all its respective Intellectual Property Rights granted to you to use the API under this API License does not convey any additional rights in the API or use of the Platform, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the API as expressly stated herein, all rights, title and interest in and to the API and all hardware, software and other components of or used to provide the API, including all related IP Rights, will remain with and belong exclusively to the Company. The Company shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the API or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from Developer.
   
   

5. Confidentiality

1. By using the API, you may from time to time, gain access to Confidential Information. You may use Confidential Information only to the extent necessary to exercise its rights under this API Licence. Subject to the express permissions set forth herein, you may not disclose Confidential Information to a third party without the prior express consent of the Company, provided in writing or by email. Without limiting any other obligation of you under this API Licence, you agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that you would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
2. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, carrier rates, goods and services, confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information; such information, as well as the terms of this Agreement , whether oral or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Confidential Information excludes information that, at the time of disclosure and as established by documentary evidence.
   
   1. is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this section by Receiving Party or any of its Representatives;
   2. is or becomes available to Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
   3. was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party;
   4. was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party's Confidential Information; or
   5. must be disclosed under applicable Law.
3. Receiving Party shall for five (5) years from receipt of Confidential Information:
   
   1. protect and safeguard the confidentiality of Disclosing Party's Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
   2. not use Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
      
      
   3. not disclose any such Confidential Information to any Person, except to Receiving Party's Representatives who must know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
4. Receiving Party shall be responsible for any breach of this section caused by any of its Representatives. The provisions of this section shall survive termination or expiration of this Agreement for any reason for a period of five (5) years after such termination or expiration. At any time during or after the Term, at Disclosing Party's written request, Receiving Party and its Representatives shall, under section promptly return all Confidential Information including copies that it has received under this Agreement

6. Restrictions and Responsibilities

The licenses granted in Section 2 of this API Licence are explicitly conditioned on your adherence to the following restrictions and compliance with its responsibilities as set forth herein.

1. You must comply with all restrictions set forth in this API Licence, and the Terms in all uses of the API and API Data. If the Company believes, in its sole discretion, that you have violated or attempted to violate any term, condition or the spirit of this API Licence or the Terms, the license afforded you pursuant to this API Licence may be temporarily or permanently revoked, with or without notice to you.
2. In order to use and access the API, you must either obtain API credentials from the Company in the form of one or more tokens (each, a “Token”), or generate a Token from your account settings page on the Company’s platform. You may not share your Token(s) with any third party, you shall keep such Token(s) and all login information secure, and you shall use the Token(s) as your sole means of accessing the API. The Company may revoke the Tokens from you at any time. You shall notify the Company in the event that there is a change in API administrator at your organization.
   
   
3. You shall not, unless agreed to in writing between both parties, through APIs or otherwise, repackage or resell the Company’s Services, or any part thereof, API or API Data. You shall not use or assist a third party in using the API or any API in such a way to circumvent the Company’s login procedures and/or Token authentications. Further, you shall not use or assist a third party in using the API or any API in such a way to circumvent applicable restrictions in this API Licence. You are not permitted to use the API or any API Data in any manner that does or could potentially undermine the security of the Services, the API, API Data or any other data or information stored or transmitted using the Services. In addition, you shall not, and shall not attempt to: (a) interfere with, modify or disable any features, functionality or security controls of the Services or the API, (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Service or the API, or (c) reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Services or the API.
   
   
4. You acknowledge that you are solely responsible, and that the Company has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of the Application’s integration into the API. Without limiting the foregoing, you will be solely responsible for (a) the technical installation and operation of your Application’s integration with the API; (b) creating and displaying information and content on, through or within integration with the API; (c) ensuring that your Application’s integration with the API does not violate or infringe the Intellectual Property Rights of any third party; (d) ensuring that your Application’s content is not offensive, profane, obscene, libelous or otherwise illegal; (e) ensuring that your Application do not contain or introduce malicious applications into the API, any API Data or other data stored or transmitted using the Service; (f) ensuring that your Application is not designed to or utilized for the purpose of spamming any the Company’s customers or end users; and (g) ensuring that your Application does not violate any applicable law or third party right.
5. Security Incident and Breach Response. You shall maintain, operate and enforce an appropriate policy regarding security incidents and security breaches as follows:
   
   1. You will maintain a security incident and event management system, including logging and alarming, that provides real time analysis of security alerts that impacts the API Data received, in transit, or through the process of acquisition via the API.  
   2. You will have an appropriate plan to respond to security incidents to identify threats and address them in accordance with the provisions of the Agreement.
      
      
   3. You will provide written notice to the Company by email to soc@clickship.com within eight (8) hours of any actual or reasonably suspected breach of security, confidentiality or privacy (“Security Breach”) of API Data.
      
      
   4. You will appropriately respond to any Security Breach to identify the API Data that has been or may have been subject to the Security Breach, including preparing and submitting to the Company a breach response plan meeting the requirements of applicable laws, which will not be unreasonably withheld or conditioned, and with written updates to the Company regarding the implementation of that plan; provided that Customer will have the right to approve in advance any communications to individuals whose personally identifiable information may be subject to the Security Breach.
      
      
   5. You will employ all appropriate measures to mitigate the adverse effects of the Security Breach, with written updates to the Company regarding such mitigation effects.  
    
6. You will respect and comply with the technical and policy-implemented limitations of the API and the restrictions of this API Licence in designing and implementing APIs. Without limiting the foregoing, you shall not violate any explicit rate limitations on calling or otherwise utilizing an API.
   
   
7. You shall not make any modifications to any API Data, other than as reasonably necessary to modify the formatting of such API Data in order to display it in a manner appropriate for the pertinent APIs.
   
   

7. Representations, Warranties, and Covenants

1. To the extent your APIs transmit all electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, your customers or their end users in connection with Your use of the Company’s services and API (“API Data”) outside a Service, you represent and warrant that you have notified all users of such APIs that their API Data will be transmitted outside your Application. You further represents and warrants that to the extent your Application stores, processes or transmits API Data, neither you nor your API will, without appropriate prior user consent or except to the extent required by applicable law (a) modify the content of API Data in a manner that adversely affects the integrity of API Data; (b) disclose API Data to any third party; or (c) use API Data for any purpose other than providing the API functionality to users of such API. You shall maintain and handle all API Data in accordance with privacy and security measures reasonably adequate to preserve the confidentiality and security of all API Data and all applicable privacy laws and regulations, and in no event less protective than the measures and policies set forth in the Privacy Policy.
2. You represent, warrant and covenant that
   
   1. your Application and your Marks, the use of such Application by its users, and the Company’s connection with such Application and your Marks undertaken by the Company in accordance with the terms of this API Licence, do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party;
      
      
   2. you will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and Publish its APIs;
      
      
   3. your APIs do not and will not contain or introduce any Malicious API into the Service, the API, any API Data, or other data stored or transmitted using the Service
      
      
   4. your APIs are not designed to or utilized for the purpose of spamming any end users;
      
      
   5. you have all right, power and authority to grant the licenses granted to the Company herein;
      
      
   6. in the event your end customers will be interacting with, or using the Company’s services directly, without your intermediation, then you will include a link to the Other Terms in your terms of service (“App Terms of Service”) that governs use of your Application by your end users;
      
      
   7. shall only process Personal Data in order to provide the Services described in the Your Agreement and this API Licence, and as required by applicable laws;
      
      
   8. shall not retain, use, or further disclose Personal Data provided by the Company for your own commercial purpose or for any purpose outside of the direct business relationship with the Company or other than the business purpose covered by the Your Agreement;
      
      
   9. shall not sell, disclose, share or provide access to the Personal Data provided by the Company for monetary or other valuable consideration;
      
      
   10. shall not further collect Personal Data about your end consumers except as necessary to perform the Services under Your Agreement;
       
       
   11. You shall take reasonable steps to ensure the reliability of any of its employees, agents or contractors who may have access to the Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Personal Data, as strictly necessary for the purposes of Your Agreement, and to comply with applicable laws in the context of that individual’s duties, ensuring that all such individuals are appropriately trained and are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
       
       
   12. You shall implement and maintain reasonable technical, physical and organizational measures appropriate to the nature of the information, to protect the Personal Data from unauthorized access, destruction, use, modification, or disclosure;
       
       
   13. You shall implement appropriate technical and organizational measures and cooperate with the Company in the fulfilment of the Company’s obligations, as reasonably understood by Company, to respond to requests by end consumers for disclosure of information or information practices and for deletion of personal information as permitted by applicable laws; and You represent, warrant and covenant that
       
       
   14. You shall be solely responsible for any and all obligations to report or inform your customers of any personal data breach affecting Personal Data in your custody or control.

8. Modifications

You acknowledge and agree that the Company may modify this API Licence and the API from time to time (a “Modification”). You may be notified of a Modification by Notice, but you further acknowledge and agrees that such Modifications may be implemented at any time and without any notice to you. You shall, within thirty (30) days from the date of first notice of any Modification(s) (or such shorter period of time specified in the notice of the Modification(s)) (the “Conformance Period”) comply with such Modification(s) by implementing and using the most current version of the API and making any changes to APIs that may be required as a result of such Modification(s). You acknowledge that a Modification may have an adverse effect on APIs, including but not limited to changing the manner in which APIs communicate with the API and display or transmit API Data. The Company shall have no liability of any kind to you or any user of your APIs with respect to such Modifications or any adverse effects resulting from such Modifications. Your continued access to or use of the Services or API following the Conformance Period shall constitute binding acceptance of the Modification(s) at issue.

9. Support

This API Licence does not entitle your end users to any technical support for the Application or its connection to the API, unless you makes separate arrangements with the Company for such support. You are solely responsible for providing all support and technical assistance to your end users of your application and customers who access, deploy and/or purchase services on your Application even if they access API Data. Unless otherwise agreed to with the Company in Your Agreement, you acknowledge and agree that the Company has no obligation to provide support or technical assistance to the end users of your Application and its integration with the API and you shall not represent to any such users that the Company is available to provide such support. You agree to use commercially reasonable efforts to provide reasonable support to end users of your Application.

1. Except for your indemnification obligations, under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this agreement, or their affiliates, officers, directors, employees, agents, suppliers or licensors be liable to the other party or any third party for any lost profits, lost sales or business, lost data, business interruption, loss of goodwill, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other loss or damages incurred by such party or third party in connection with this agreement, the API regardless of whether such party has been advised of the possibility of or could have foreseen such damages.
2. Notwithstanding anything to the contrary in this agreement, the Company’s aggregate liability to you or any third party arising out this Agreement, shall in no event exceed One Hundred Canadian dollars (CAD$100.00).
   
   
3. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. In these jurisdictions, the Company’s liability will be limited to the greatest extent permitted by law. The limitations set forth in this section will survive and apply even if any limited remedy specified in this API Licence is found to have failed of its essential purpose.