FWC PLATFORM SUBSCRIPTION SERVICES AND LICENSE AGREEMENT

Updated 2020-02-05

This PLATFORM SUBSCRIPTION AND LICENSE AGREEMENT (“Agreement”) is entered into between the customer ordering or using Freightos WebCargo services (“Customer”) and

WEB CARGO S.L. (“FWC” or “Supplier”) a Spanish corporation , and  subsidiary of Freightos Ltd, with its principal place of business in Av. Diagonal, 211, 10th floor, 08018, Barcelona, Spain.

FWC and the Customer may be referred to individually as a “Party” and collectively as the “Parties”.

WHEREAS, FWC has developed a platform which contains data (the “Data”) which it makes available over the Internet for a fee or for free,  as permitted by law;

WHEREAS, FWC has developed a software program delivered as software-as-a-service over the Internet providing functionality for freight rate management and freight price quotes, and providing access to the Data (the “Software” and together with the Data, the “Platform”); and

WHEREAS, the Customer has requested access to and license to use certain portions of the Platform for the consideration and on the terms set forth below, and FWC has agreed to allow the Customer use of the Platform all subject to the terms and representations set forth below.

NOW, THEREFORE, in consideration of the mutual promises and covenants and the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

SECTION 1. INCORPORATION OF RECITALS AND POLICIES

The above recitals are incorporated into and made a part of this Agreement as it fully set forth herein. The following policies are also included by reference:  privacy and cookies.

SECTION 2. SUBSCRIPTION AND LICENSE TO PLATFORM

Subject to the terms set forth in this Agreement, FWC hereby grants to the Customer a non-exclusive, non-transferable and limited license to use and access to the Platform for a certain number of Authorized Users at certain geographical locations of Customer, as set out in the Customer purchase order.  FWC is furnishing the Platform with all rights reserved and the Customer acknowledges that the title, copyright and all other rights to the Platform and the Software remain with FWC.

Neither the Customer nor any Authorized User (as defined below) shall have any right, title or interest in the Platform, except as provided herein. Except as provided above, neither the Customer nor any Authorized User shall copy, reproduce, duplicate, publish, disclose, distribute, license, sub-license, relicense, use as the basis for a derivative platform, assign, release, transfer, sell or otherwise make the Platform available to any other organization or person in any form or manner whatsoever. FWC reserves the right to withdraw from the Data any item or part of an item for which it no longer retains ownership rights or which it has reasonable grounds to believe infringes copyright or is unlawful or otherwise objectionable or for which FWC reasonably believes that the Customer has failed to adequately protect FWC’s title, copyright and other rights.

SECTION 3. CUSTOMERS AND AUTHORIZED USERS AND LIMITED ACCESS

“Customer” is the organization defined in the preamble which may be an individual, firm or organization accessing the Platform for a commercial interest rather than a public, not for profit, or educational interest and may include a Corporation, limited liability company, law or other business organization member of IATA or a CASS associate, that wishes to access the Platform and/or utilize the Software.

“Authorized Users” means the number of users set out in the purchase order that can include (i) in the case of Customers organized as corporations, the Customer’s employees, (ii) in the case of Customers organized as limited liability companies, the Customer’s employees and members, each of who, in compliance with this Agreement,  (a) is covered by the applicable fee paid by the Customer or subscribed for free to the Sky version  and (b) have been issued a username and password.

“Limited Access” means access to that portion of the Data specified in the purchase order (typically listed by country of origin).

Only Authorized Users are permitted to access the Platform and permissions shall not extend to any subsidiary or affiliated entity unless specifically listed. Customer and each Authorized User shall be responsible for maintaining the secrecy of usernames and passwords. Customer and each Authorized User agree to notify FWC if a username has been compromised.

The Authorized User shall access the Platform via FWC’s website through the use of a username and password. The Customer and Authorized user are responsible for establishing and providing its/their own connection to the FWC website using a standard web browser and internet connection. No other services are provided under this Platform Subscription Agreement.

The Customer and Authorized User are solely responsible for its use of the Platform. The Customer and Authorized User agree that they will not use the Platform for any illegal purpose, in infringement of copyright, trademark, intellectual property or property rights or laws, or in any manner or for any purpose that interferes with or disrupts other Customers, Authorized Users, services or equipment, including FWC users, services and equipment.

Customer and Authorized User acknowledge and agree that FWC website was developed by and is solely owned by FWC and/or its affiliated companies and that it will remain the exclusive property of FWC and/or its affiliated companies..

FWC warrants and represents that FWC has all necessary permits, licenses, rights and authorizations to enter into and perform in full this Agreement including valid licenses of all intellectual property rights (including but not limited to patents if any, trademarks, database rights, copyrights, author rights, design rights) which are necessary for the performance of any of its obligations hereunder (and for Customer to access and use the Platform, Data and Software and other benefits conferred by this Agreement).

SECTION 4. DESCRIPTION OF SERVICES

System requirements and description of the services.

        Version: Web Cargo 3.0

        System requirements: DSL (Internet connection), PC, MAC, IPAD, Tablet or certain  

       smartphones.        

        Customer must be: IATA Forwarder or Cass associated.

The services provided by FWC will be the following:

Air Freight Rates Data This service allows the user to search the airlines rates provided by customers or carriers or general sales agents (“Air Freight Rates”) by entering origin and destination or a specific airline. As a result, the search results will be displayed and sorted by price in ascending order (from the cheapest to the most expensive rates). User may also calculate the final price by inserting the total “gross weight” and “chargeable weight” or the weight and dimensions of all the shipments.

Data Services If Customer wishes to add their own confidential airfreight rates (“Customer Rates”) that are not currently part of the Platform for their own in-house utilization, the Customer shall be responsible for submitting the rates to FWC and FWC will provide the service of loading these rates into the Platform, provided Customer shall submit a reasonable number of rates in a reasonable Excel format.  

Data Services SLA Air Freight Rates will be updated and uploaded in the FWC website within a maximum of two (2) working days, or three (3) working days for PDFs and images. However, between October 15th and November 15th and March 15th and April 15th of each calendar year, rates may be updated and uploaded in the FWC website within a maximum of four (4) working days.

Other Features and Tools:

Alerts Together with the search results, alerts on the newest fuel prices and airline rates, may be displayed.

               Filters This option allows the user to filter the rates by services such as DGR, PER, CAO…

                Profits This service allows the user to add profit to every rate breakdown.

Quotes This option allows the user to create and download a quote document in pdf or excel with or without the origin/destination costs.

Atlas This tool allows the user to select the closest airports to a specific city and compare their prices.

Air tracking This service allows the user to follow the track of their shipments by introducing the Air Waybill (AWB)

Handling Agents contact details

Currency Converter & Volume Calculator

Tenders

Translator

Customized applications tailored to the user’s needs (under request and subject to additional

fees)

        In FWC’s efforts to improve the platform, features are subject to change or be discontinued at FWC’s discretion to ensure that the Customer always has the latest version.

4.1 Support

All support requests should be sent to support@webcargonet.com or via other support contact methods published on webcargo.co from time to time.

4.2 Availability SLA

If the Platform is not available during 99.9% of the term of this Agreement, Customer shall be entitled to request a credit equal to the proportion of fees paid, equal to the proportion of the 12 month period in which the Platform was not available. Such credits will be applied to future subscriptions. This clause does not apply for the Sky version subscription.

SECTION 5. PAYMENT TERMS

All the prices or fees related to the services included or regulated under this contract are included in the purchase 0rder or listed on the FWC standard price list and shall be invoiced annually in advance unless otherwise agreed in writing. Invoices shall be paid within 30 days of issue.

The Customer shall transfer the total amount due to the FWC bank account:

BBVA: :0182 0262 96 0202089467

IBAN: ES85 0182 0262 96 0202089467

SWIFT: BBVAESMMXXX

Or to another bank account or other payment mechanism as notified from time to time.

SECTION 6. SUBSCRIPTION PERIOD

Unless terminated in accordance with the provisions of this Agreement, the Subscription Period for the license and rights granted to Customer by this Agreement shall be in effect for a period of twelve (12) months from date accepted by Customer “Effective Date” or as set out in the relevant purchase order. This Agreement shall automatically renew each twelve (12) months unless either Party provides the other Party with written notice (including email) of its intent not to renew, at least thirty (30) days before the end of the 12 month period.

FWC may notify Customer of an update of prices at least one month prior to the end of the 12 month period, and if Customer does not provide FWC of its intent not to renew, the new prices shall govern.

SECTION 7. TERMINATION OF LICENSE

In addition to all other legal remedies that may be available to either Party, either Party is entitled to terminate the Agreement hereunder upon breach of this Agreement by the other party by giving the other Party thirty days written notice to cure such breach. If Customer breaches any provision of this Agreement, in addition to any other rights or remedies it may be entitled to, FWC may suspend access to the Platform, without prior notice.

SECTION 8. CUSTOMER INFORMATION

a.  Customer Information includes Air Freight Rates, Customer Rates, Customer’s quotes, and any other Customer-specific data uploaded to the Platform. Customer Information will be and remain the property of Customer. Customer grants the Supplier a non-exclusive, worldwide license to use the Customer Information for the nature for which it is intended (for example airline market rates which are intended for all freight forwarders. or for all IATA-member forwarders, may be shared by Supplier with all such forwarders, once data is legitimately received from one such forwarder). The Supplier will not utilise Customer Information for any purpose other than that of rendering the Services and shall not use Customer´s Information for the benefit of any Third Parties. Notwithstanding anything above or below, FWC and its affiliated companies and subcontractors and business partners may make use of aggregate, anonymous, statistical data which may be derived from Customer Information combined with data from other customers, in such a way which does not identify Customer (for example price indexes, price benchmarking services etc.).

 b. The Supplier shall establish and maintain commercially reasonable safeguards against the unauthorized access, destruction, loss or alteration of Customer Information and will backup all Customer Information.

SECTION 9. LINKS AND THIRD PARTY CONTENT

Certain content, components or features of the Platform and the Software may include materials from third parties and/or hyperlinks to other websites, resources or content and therefore be subject to third parties’ terms and conditions. Because FWC may have no control over such third party websites and/or contents, Customer acknowledges and agrees that FWC is not responsible for the availability of such websites or resources, and does not endorse or warrant any accuracy of any such websites or resources, and shall in no way be liable or responsible for any content, advertising, products or materials on or available from such websites or resources. Customer further acknowledges and agrees that FWC shall not be responsible or liable in any way for any damages that incurs or alleged to be incurred, either directly or indirectly, as a result of its use and/or reliance upon any such third-party contents, advertising, products or materials on or available from such websites or resources.

SECTION 10. CONFIDENTIALITY

In this Agreement “Confidential Information” shall mean any information (including samples, materials, drawings, specifications, photographs, computer code, computer programs, software, data, formulae, processes, know-how, any technical or commercial information), reports, papers, correspondence or documents which is disclosed by or on behalf of one Party to the other, or to any of such other’s employees, officers or servants, in whatever form (including written, oral, visual or electronic), and which is, or which should reasonably be expected to be, f a confidential nature.

The Party receiving or acquiring Confidential Information (“the Receiving Party”) from the other Party (“the Disclosing Party”) undertakes for so long as such Confidential Information remains confidential in character: (i) to keep all such Confidential Information made by or on behalf of the Receiving Party are protected against theft or other unauthorized access; (ii) not to communicate or otherwise make available any such Confidential Information to any third party except with specific prior written consent from the Disclosing Party; (iii) to disclose Confidential Information only to such personnel employed by the Receiving Party who have specific need to receive such Confidential Information for the Purpose, and who are aware and have accepted that the Confidential Information is, and should be treated as, of a confidential nature; and (iv) not to use, or allow to be used, Confidential Information other than solely for or in relation to the Purpose, unless (and then only to the extent to which) any other use shall have been specifically authorized in writing by the Disclosing Party.

The obligations above shall not apply, or shall cease to apply, to such Confidential Information as the Receiving Party can show to the reasonable satisfaction of the Disclosing Party: (i) has become public knowledge other than through any fault of the Receiving Party; (ii) was already known to the Receiving Party prior to disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without recourse to or use of any Confidential Information; (iv) has been received by the Receiving Party from a third party who did not acquire it in confidence from the Disclosing Party, or someone owing a duty of confidence to the Disclosing Party; or the Receiving Party is required to disclose by law or by a requirement of a regulatory body.

The obligations of confidentiality in this Agreement shall apply to all Confidential Information disclosed by the Parties for the Purpose, whether disclosed before or after the date or dates of this Agreement, and shall continue in force notwithstanding termination of this Agreement, or the Parties entering into any subsequent agreement.

SECTION 11. DATA PROTECTION

The Parties will process the personal data that are subject to the legal scheme provided for under Regulation (EU) 2016/679 of the European Parliament and of the Council, of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/CE (hereinafter, GDPR) and the implementation regulations thereof. All Parties expressly undertake to faithfully and fully comply with the applicable law regarding personal data protection and indemnify and hold the other Party harmless from damages caused by any breach thereof, provided however that “Customer” shall not be liable or required to indemnify FWC or any other party for any action or inaction that was taken as a result of instructions from FWC.

For such purposes, and in compliance with the provisions of the GDPR subject to any other applicable laws, the Parties expressly state and bind themselves to:

  1. use and process the data for the sole and exclusive purpose of performing under this Agreement, at all times following the instructions received from the other Party, and expressly refrain from using the data for any purpose other than that agreed, and, in particular, refrain from altering the data or using them for the Party's own business interests or disclose the data or allow access to them by third parties, not even for purposes of conservation.
  2. abide by the utmost confidentiality and secrecy with respect to any personal data provided by the other Party as to the performance of the Principal Agreement and agree not to disclose to any third party any such data or any other information provided to it as regards the other Party.
  3. return to the other Party after the completion of the provision of services under the Principal Agreement all documents and files containing all or any of the personal data, whatever the data carrier or format, and copies thereof, unless Union or Member State law requires storage of the personal data, if there had been an exchange of information.
  4. restrict access to and use of the personal data to those of the Party's employees, agents and collaborators for whom it is absolutely indispensable that they have access to and knowledge of the personal data for the performance of the Principal Agreement, and impose on those persons the same duties and obligations of confidentiality and prohibition of use with respect to the data as those set out in the terms of (a) and (b) above, and answer for any breach of those duties or obligations by any of its employees, agents and collaborators mentioned above pursuant to this Addendum.
  5. In accordance with article 28 of REGULATION (EU) 2016, of April 2016, of the European Parliament and of the Council and on the Protection of natural persons with regard to the processing of personal data and on the free movement of such data, both parties agree to enter into an additional or modified addendum, if necessary, enabling the subcontractor (as Processor) to process on behalf of the Controller the personal data necessary to perform the Principal Agreement under applicable law.
  6. indemnify the other Parties in respect of any cost, damage or detriment sustained by them by reason of breach by such Party of any of the duties or obligations under this clause, such damage or detriment expressly to be construed as including any fine and/or sanction imposed by the Spanish Data Protection Agency, on the other party as a result of any breach of this clause, provided however that “Customer” shall not be liable or required to indemnify FWC or any other party for any action or inaction that was taken as a result of instructions from FWC.

Subject to applicable laws, FWC undertakes to:

  1. Comply with the sufficient and appropriate safeguards for processing personal data.  
  2. Evaluate the need to carry out a Privacy Impact Assessment, and do so, if necessary, agreeing to biannual reviews, if appropriate.
  3. Take all the steps necessary in accordance with article 32 of the GDPR to ensure compliance with the obligations set forth in articles 32-36 of the Regulation regarding data processing.
  4. Assist the “Customer” as much as reasonably and commercially practicable, keeping in mind the type of processing, by using the adequate technical and organisational measures, whenever possible, in order to comply with its obligations to answer the data subject’s requests to exercise their rights.  
  5. Make available to “Customer”all the information necessary to prove compliance with the obligations herein established, as well as permit audits and contribute to their performance, including inspections, to be conducted either by “Customer”or another auditor authorized by “Customer”, but only if FWC has received reasonable prior written notice.

Personal data included in this Agreement

In accordance with the current data protection regulations, you are hereby informed of the following: The company FWC a subsidiary of Freightos Ltd, with its principal place of business in Av. Diagonal, 211, 10th floor, 08018, Barcelona Spain, will, in its capacity as data controller acting on behalf of itself  keep in its files the personal data provided by any user whether such personal data was processed by “Customer” or otherwise. Pursuant to applicable laws, a Data Subject shall be entitled   to exercise, at the indicated address or through rgpd@webcargonet.com, the rights of access, rectification, cancellation, erasure, opposition, restriction of processing, data portability and not to be subject to automated individual decision-making, in relation to the data processed pursuant to the Principal Agreement.

SECTION 12. DISCLAIMER OF WARRANTIES

THE PLATFORM AND DATA ARE PROVIDED “AS IS” WITHOUT ANY ACCURACY OR COMPLETENESS WARRANTY WHATSOEVER.

THE CUSTOMER ACKNOWLEDGES AND ACCEPTS THAT THE DATA MAY CONTAIN INACCURACIES AND IS DYNAMIC AND IN A CONSTANT STATE OF MAINTENANCE, CORRECTION AND UPDATE WHICH WILL RESULT IN CHANGES DURING THE TERMS OF THIS AGREEMENT. FWC SHALL OPERATE AND MAINTAIN THE FWC PLATFORM, CONTINGENT UPON FWC’S NETWORK AND EQUIPMENT CAPACITY, AND CONNECTION AVAILABILITY. THE CUSTOMER ACKNOWLEDGES AND ACCEPTS THAT FWC DOES NOT OPERATE OR CONTROL THE INTERNET OR THE WORLD WIDE WEB.

THE CUSTOMER FURTHER ACKNOWLEDGES AND ACCEPTS THAT FROM TIME TO TIME THE FWC WEBSITE AND PLATFORM MAY NOT BE ACCESSIBLE DUE TO MAINTENANCE PROVIDED FWC INFORMS CUSTOMER IN WRITING AND IN ADVANCE AT LEAST 48 HOURS BEFORE SUCH MAINTENANCE AND THE EXPECTED TERM OF SUCH MAINTENANCE.  

SECTION 13. LIMITATION OF LIABILITY

CUSTOMER EXPRESSLY AGREES THAT ANY LIABILITY OF FWC AND/OR ANY MEMBER, OFFICIAL, EMPLOYEE, REPRESENTATIVE OR AGENT OF FWC, OR THEIR RESPECTIVE SUCCESSORS, HEIRS, ASSIGNS, WHETHER INDIVIDUALLY OR PERSONALLY OR OTHERWISE, TO THE CUSTOMER, ANY AUTHORIZED USER OR ANY OTHER PERSON OR ENTITY AFFILIATED TO THE CUSTOMER, OR THEIR RESPECTIVE SUCCESSORS, HEIRS OR ASSIGNS, FOR ANY LOSS OR CLAIM, INCLUDING BUT NOT LIMITED TO ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE CUSTOMER’S OR ANY AUTHORIZED USER’S USE OF OR INABILITY TO ACCESS OR USE THE PLATFORM, THE DATA OR ANY COMPONENT THEREOF OR ANY INACCURACY OF THE DATA, SHALL BE LIMITED IN AGGREGATE TO THE FEES PAID TO FWC IN THE 12 MONTHS PRIOR TO THE CLAIM.

SECTION 14. INDEMNIFICATION

Customer agrees to indemnify and hold FWC and its Commissioners, officers, agents servants and employees and their respective heirs, successors and assigns, harmless from any and all claims, suits, losses, liabilities, costs and expenses, including attorneys’ fees, which arise directly or indirectly out of or in connection with any violation of the provisions of this Agreement. This indemnification obligation won’t apply in case of negligent or intentional behavior of FWC provided such negligence or intentional behavior of FWC is not caused by any violation by Customer.

The provisions of this Section shall survive the termination of this Agreement.

SECTION 15. COMPETENT JURISDICTION AND APPLICABLE LEGISLATION

In the eventuality of any dispute relating to the provision of the services or the terms and conditions of this Agreement the Laws of Spain shall apply and the parties submit to the courts of Barcelona, Spain.

SECTION 16. MISCELLANEOUS

  1. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements only and duly signed between FWC and Customer and its affiliates, related to the same scope and object of this contract, understandings, negotiations and discussions, whether oral or written, in relation to the matters dealt with herein. There are no representations, warranties, collateral agreements or conditions to this Agreement, except as expressly stated in this Agreement.
  2. The section headings are for reference and information purposes only, and shall not affect in any way the meaning or interpretation of this Agreement. References to singular shall include the plural and to plural shall include the singular. References to a person shall include a corporate or government body. Words such as “including” and similar expressions shall not be read as words of limitation.
  3. In this Agreement, “Working day” means Monday through Friday, excluding Spanish Public and Bank holidays; and “normal working hours” means 9 am to 6 pm Central European Time.
  4. Neither Party shall be liable or deemed in default for any delays or failure in performance resulting directly or indirectly from any cause or circumstances beyond its reasonable control, including acts of God, war, embargoes, fire, flood, accidents, strikes, shortages of transportation facilities, telecommunications facilities or software programs. 
  5. If a court or administrative body finds any term or condition to be invalid or unenforceable hereof, the remaining terms and conditions hereof shall remain in full force to the maximum extent of the law.
  6. FWC may list Customer’s name and its standard logo in its public customer lists, press releases and the like. Customer may list FWC’s name and its standard logo in its public supplier/technology lists. Other publicity requires the consent of the other Party.
  7. FWC may assign this Agreement to an affiliate company (parent, subsidiary, successor to substantially all its business or other related company with more than 51% common beneficial ownership).

This Agreement may be modified from time to time.  The newest version available at the time of the invoice for the renewal will govern the commercial relationship between the Parties for each subsequent year.