A. General. Loadsmart, as a technology platform, brings together Shippers and Carriers for the transportation of Shipments to, from, and between points in the United States, enabling Shippers to post details of desired and requested shipping and transportation needs, Carriers to accept such requests, and both parties to book and manage the resulting Shipments. Loadsmart is not a Shipper or Carrier and does not and will not function as a property broker or freight forwarder, as those terms are defined in the Interstate Commerce Act, 49 U.S.C. § 13102, in furnishing or facilitating Service under this Agreement. “User” means any user of the Service; it may be a Carrier or a Shipper, but may not be a broker (unless, as a broker, the user-broker represents a shipper when initiating a Shipment request pursuant to the Service, in which case the broker will be deemed a “Shipper” for purposes of this Agreement) or a freight forwarder. To the extent you are a Carrier, the provisions in this Agreement designated for “Carriers” apply to you. To the extent you are a Shipper, the provisions in this Agreement designated for “Shippers” apply to you. To the extent you are a User, the provisions in this Agreement designated for “Users” apply to you.
B. Shipment Posting, Acceptance, and Completion Process.
(1) Initiating the Shipment. Shipper initiates requests for transportation of a Shipment by posting on the Service website certain details about the Shipment. Shipper posts origin and destination addresses, the requested dates and times of the Shipment, and a description of the commodities to be shipped (including weight) and selects the type of trailer or truck needed. Shipper then clicks “Search” to receive a “price” from Loadsmart for the transportation. Once Shipper receives a price, it may request transportation at that price, subject to Loadsmart locating a Carrier willing to transport that Shipment. It does so by clicking “Book.” Shipper must register with Loadsmart prior to booking if not already registered. Loadsmart notifies Shipper that its Shipment has been “booked,” and Shipper has to provide further details on the Shipment. At any time after booking, Loadsmart sends out an electronic request for trucks to Carriers registered with Loadsmart, furnishing information about the Shipment and the price for its transportation. A Carrier receiving electronic notice of the Shipment from Loadsmart may, but is not required to, accept the Shipment at the price offered. It does so by clicking “Accept” on the website screen. Carrier may instead offer to transport the Shipment at a higher price by clicking “Bid” and inserting that price. Loadsmart may or may not accept Carrier’s counter-offer or bid. The first Carrier to accept a booked Shipment or the first Carrier whose counter-offer or bid Loadsmart accepts is assigned that Shipment, and thereafter, that Carrier and Shipper are legally bound, and the Shipment is no longer available for other Carriers. Shipper may cancel a Shipment and transaction at any time prior to its acceptance but shall incur a penalty. This and other cancellation provisions (and penalties) are set forth in Section V.C.(2) of this Agreement. Loadsmart is not responsible for any Shipment description or terms of its transportation. Loadsmart does not guarantee that a Carrier will accept any particular booked Shipment. If no Carrier accepts a booked Shipment, Loadsmart so notifies Shipper and may suggest posting the Shipment again or may continue searching for Carriers not yet registered with Loadsmart willing and able to handle the Shipment.
(2) Completing the Shipment. Following Carrier acceptance, Shipper must issue and provide Carrier a numbered bill of lading (“Bill of Lading”) for each Shipment. It may do so by completing the electronic Bill of Lading form Loadsmart provides on its website as soon as this feature becomes available. The Bill of Lading must contain, at minimum, the names and addresses of the Carrier and Shipper, the origin and destination addresses, the requested pickup and delivery dates and times, a description of the commodities to be shipped (including weight), and other relevant terms and conditions. Loadsmart does not issue Bills of Lading, but will, upon request, generate for Shipper and Carrier use an e-Bill of Lading, using Loadsmart’s posted form, based upon information Shipper provides. Loadsmart is not responsible for the accuracy or legal enforceability of the Bill of Lading form used or of the information inserted thereon and expressly disclaims any such responsibility or liability for the Bill of Lading the parties execute. See also Section VII of this Agreement for additional Bill of Lading terms. Carrier must direct any questions or concerns regarding the Bill of Lading to Shipper. Once Carrier completes delivery of the Shipment, Carrier promptly uploads to the Service a proof of delivery signed by the authorized recipient (“Proof of Delivery”), including by signing the Bill of Lading on the mobile phone as soon as this feature becomes available.
C. Fleet Management, Internal Shipment Manager, Fleet Analytics, Communications Center and other Features.
(1) Loadsmart provides certain ancillary Services to Shippers and Carriers (“Ancillary Services”). These Ancillary Services may include fleet management, asset tracking, internal shipment manager, communications center, fleet analytics among others. You agree that you will use the Ancillary Services at your own risk and that Loadsmart makes no representations or warranties regarding the accuracy or completeness of any content or these products, and that Loadsmart will have no liability for any damage or loss resulting from your use of the content or these products.
II. EXCLUDED SERVICES
Certain transportation is not within the Service that Loadsmart offers through its technology platform and is, therefore, beyond the scope of this Agreement. The following transportation services and commodities are excluded from the Service:
(i) less-than-truckload (“LTL”) shipments
(ii) intermodal shipments, but for drayage
(iii) shipments not moving entirely by one motor carrier
(iv) shipments brokered to another motor carrier
(v) international shipments (i.e. those having an origin or destination outside of the United States)
(vi) household goods
(vii) hazardous materials, dangerous goods, chemicals
(viii) oversize or overweight loads requiring special highway permits and/or escorts
(ix) commodities of extraordinary or unusual value
(x) illegal goods
(xi) firearms, explosives, ammunition
(xii) glass and glazing products
(xiv) boats and mobile homes
(xvi) garbage, refuse, trash
III. CARRIER TERMS
A. Representations and Warranties. If you are a Carrier, you hereby represent and warrant that:
(1) you have completed the Loadsmart registration process and have provided Loadsmart: (i) your assigned “MC” or “DOT” number, (ii) a completed W-9 form, and (iii) prior to moving your first Shipment with Loadsmart, certificate(s) of insurance evidencing minimum coverage amounts of $100,000 for cargo liability and $1,000,000 for business automobile liability with insurance companies maintaining a rating from A. M. Best of A- or higher;
(2) you are duly authorized to provide transportation services as a motor carrier of commodities and desire to provide such services for Shipments;
(3) you have all applicable licenses, certificates, permits, approvals, and authority necessary to provide the Service subject to this Agreement, including the Uniform Intermodal Interchange & Facilities Access Agreement in place for drayage services;
(4) you will comply with all applicable federal and state laws and regulations related to providing such Service, including without limitation those of the U.S. Department of Transportation and its federal agencies and, if applicable, those of the U.S. Food and Drug Administration;
(5) you will immediately notify Loadsmart if your U.S. DOT safety or fitness rating has changed to conditional, unsatisfactory, or unfit or if the scores for your FMCSA administered BASICs exceed the applicable CSA Intervention Thresholds in two or more categories;
(6) you will furnish all equipment required for the performance of such Service, including temperature controlled vehicles when needed, and will maintain all such equipment in good repair and condition;
(7) you will employ, retain, and be solely responsible for all personnel you engage to provide such Service, including paying or providing such personnel’s wages, insurance, and other benefits;
(8) you will not cause or permit any Shipment to be transported by any third-party motor carrier, including in interline service or by brokering or trip-leasing, or by any other substitute mode of transportation;
(9) you will proceed to pick up all accepted Shipments in accordance with the Shipper’s scheduled pick-up date and time;
(10) you will notify Shipper and Loadsmart immediately when free time has expired and detention charges are about to be incurred;
(11) except as provided otherwise in this Agreement, you will look solely to Loadsmart for payment of any fees or charges due you in connection with your services under this Agreement, and if you believe you are entitled to extra accessorial charges, you must notify Loadsmart and Shipper within 24 hours of the scheduled delivery time of those charges of which your are aware at that time;
(12) you will not claim, and hereby waive and release any right to claim, any lien on any Shipment, and you will not withhold delivery of any Shipment on account of any dispute about any fees or charges claimed under this Agreement or in order to secure payment of such fees or charges;
(13) you are solely responsible for any and all liability resulting from, or alleged to have resulted from, such Service, including, but not limited to, property damage, cargo loss, damage, or delay, personal injury, and death;
(14) you will be solely responsible for and agree to accept liability for the actual loss, at full invoice value of the goods, resulting from loss, damage, injury, or delay to the Shipments you transport, in accordance with the provisions of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706; and
(15) you will defend, indemnify (including legal fees), and hold harmless Loadsmart from and against any claim that it is responsible and will also defend and indemnify Shipper, Loadsmart’s customers, and the consignor and consignee on each Shipment and hold them harmless from and against all claims, losses, damage, liability, and expense, including attorneys’ fees, arising out of or relating to your performance of Service or violating any law or material term or condition of this Agreement.
(16) you have a drug and alcohol testing program meeting DOT and applicable foreign, state and local requirements.
B. Non-solicitation. Carriers will not contact any Shipper to solicit, accept, or book shipments with Shipper for a period of twelve (12) months from the last date of contact, occurring while this Agreement is in effect, between Carrier and Shipper. Loadsmart reserves the right to terminate Carrier’s Account or this Agreement in its sole discretion for a breach of this Section III(B) of this Agreement.
C. Training. If requested by Loadsmart, Carriers must complete the Loadsmart Training and Orientation Process.
IV. SHIPPER TERMS
A. Representations and Warranties. If you are a Shipper, you hereby represent and warrant that:
(1) you will not use the Service to ship or tender Carriers commodities or Shipments that are excluded from the scope of this Agreement as listed in Section II of this Agreement or Shipments that originate at or are destined to a point outside of the United States;
(2) you own or have all right and authority necessary to ship or arrange for the shipment of the commodities comprising the Shipment;
(3) you will use the Service to ship items at your own risk and agree that Loadsmart will have no liability for any shipped items;
(4) you assume sole responsibility for obtaining any insurance to cover any anticipated losses or damage;
(5) you will request pick-up and delivery dates and hours that will not knowingly require Carrier to violate federal hours-of-service regulations;
(6) you are solely responsible for any and all liability resulting from, or alleged to have resulted from, such shipped items, including, but not limited to, property damage, personal injury, and death;
(7) you will pay Loadsmart the Shipment Fee as defined in and in accordance with the provisions of Section V of this Agreement;
(8) you understand and agree that Loadsmart is not responsible for Carriers that bid on your shipping or transportation requests or that are accepted to transport your Shipments; and
(9) you consent to Loadsmart tracking your Shipment with Carrier-installed or -provided GPS technology in order to offer a better solution on shipment logistics, including tracing and scheduling Shipments while in transit, and consent to Carriers and others having live access to a Shipment geolocation through such technology without your additional consent, but you acknowledge that geolocation can be misinterpreted or misclassified due to a number of factors and that Loadsmart is not responsible for any liability arising from or related to this tracking service.
B. Non-solicitation. Shippers will not contact any Carrier to solicit, offer, or book shipments with the Carrier for a period of twelve (12) months from the last date of contact, occurring while this Agreement is in effect, between the Carrier and Shipper. Loadsmart reserves the right to terminate Shipper’s Account or this Agreement in its sole discretion for a breach or suspected breach of this Section IV(B).
V. PAYMENT TERMS
A. Shipper Payment. For each Shipment, Shipper will pay Loadsmart the price or fee Loadsmart quoted Shipper and listed to Shipper when notifying Shipper that its applicable Shipment has been “booked” and accepted for posting on the Service (“Shipment Fee”). If you are a Shipper and have provided Loadsmart a valid credit card or your bank account information, YOU HEREBY AUTHORIZE LOADSMART EITHER TO BILL YOUR CREDIT CARD OR TO PROCESS A CHECK FROM YOUR BANK ACCOUNT, AS APPROPRIATE, FOR THE SHIPMENT FEE IMMEDIATELY AFTER THE SHIPMENT IS BOOKED, AND YOU AGREE THAT NO ADDITIONAL NOTICE OR CONSENT IS REQUIRED. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S), CHECKS, OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION AND THAT ALL INFORMATION YOU PROVIDE LOADSMART OR ITS THIRD-PARTY PAYMENT PROCESSOR IS ACCURATE, CURRENT, AND COMPLETE. You agree to immediately notify Loadsmart of any change in your billing address or the credit card or bank account used for payment hereunder. If Loadsmart processes a check from your bank account, your check will be converted into an electronic check and presented immediately via the Automated Clearing House (“ACH”) system. In the event a check is subsequently returned for non-sufficient funds, you agree that Loadsmart may add a returned-check fee of $25.00 to the amount of the returned check and take any action available at law or in equity to collect such full amount. YOU AGREE TO PAY THE RETURNED-CHECK FEE, THE INITIAL AMOUNT, AND ANY COLLECTION CHARGES LOADSMART INCURS. In the event you contend an unauthorized charge using a credit card or electronic check has occurred, you should consult your bank’s rules regarding refunds and reversals. Loadsmart complies with all legal requirements of your state’s applicable laws regarding providing refunds for unauthorized charges. When a charge occurs, Loadsmart will send you an email. This is your electronic receipt.
B. Carrier Remittance. For each Shipment, Loadsmart will pay Carrier the fees or price listed to Carrier either when Carrier accepted the Shipment or when Loadsmart accepted Carrier’s bid amount, whichever is higher (“Carrier Fee”). Carrier is entitled to its Carrier Fee only after completion of the Shipment, and the payment order to Carrier will be put in place two (2) business days after Loadsmart’s receipt of the Proof of Delivery in accordance with this Agreement (it may take up to 5 business days for Carrier to receive the money due to third party payment processing). Carrier agrees to look solely to Loadsmart for payment of its Carrier Fee due and owing under this Agreement and further agrees its sole recourse in the event of nonpayment of its Carrier Fee shall be against Loadsmart and not against Shipper, the consignee, or any third-party payor. Notwithstanding the foregoing, if Shipper notifies Loadsmart electronically, prior to payment to Carrier of the Carrier Fee, that Shipper is in a dispute with Carrier over delay in delivery of or loss, damage, or shortage to the Shipment, supported by notation on the Proof of Delivery or delivery receipt uploaded to the Service, and Shipper requests Loadsmart not to pay the Carrier Fee until the dispute is resolved, Loadsmart will withhold such payment for up to thirty (30) days from the completion of the Shipment to allow the parties time to resolve their dispute. After honoring such request, Loadsmart will pay the Carrier Fee immediately after either it receives electronic instruction from Shipper to do so or the thirty (30)-day dispute resolution period has expired without receiving such instruction, whichever occurs first.
C. Additional General Payment Terms.
(1) All payments will be in U.S. dollars. Fees and prices stated above are inclusive of all fuel costs, charges, and surcharges. Carrier free standby time is one hundred twenty (120) minutes at origin (from the time the truck arrives, if within the scheduled pickup time) and one hundred twenty (120) minutes at every destination (from the time the truck arrives, if within the scheduled delivery time). Shipper will incur detention charges thereafter, billable in fifteen (15)-minute increments. Carrier shall bill Loadsmart (not Shipper) directly for such detention charges which charges Loadsmart will collect from Shipper as provided in (3) below. Loadsmart may change pricing for the Service from time to time in its sole discretion by updating the Site and Mobile App and without any additional notice to Shipper or Carrier.
(2) Shipment Fees are non-refundable. Shippers using the Service agree to pay for any Shipments booked through the Service and not to circumvent payments for scheduled or completed Shipments in any way. Shipper agrees to pay Carrier a penalty (plus the agreed price per mile applicable after a 5-mile run) per Shipment if Shipper cancels the pickup and transaction after Carrier has dispatched its truck to make the pickup. In addition to detention charges, Shipper agrees to pay Carrier a layover fee if Carrier is unable to pick up or deliver at the originally scheduled time because of some fault of Shipper, such as Shipper’s failure or inability to accommodate Carrier’s truck at its dock at the scheduled pick-up or delivery date and time or Shipper’s unilateral change (not accepted by Carrier) in the scheduled pickup or delivery date and/or time, and, as a result, Carrier’s truck and driver is forced to layover and pick up or deliver the following work-day. Users agree they are responsible for the collection and/or payment of all taxes for which they are liable in any jurisdiction arising from their use of the Service. Loadsmart is not responsible for collecting, reporting, paying, or remitting to User any such taxes. “Taxes” includes any applicable duties, sales or use taxes, and other taxes that may be levied in connection with a transaction contemplated by this Agreement.
(3) Loadsmart will bill Shipper, and Shipper shall pay Loadsmart, for all extra charges owed Carrier at the time of completion of the Shipment that were not accounted for and included in the Shipment Fee at the Booking time (e.g. cancellation fees, lumper charges, loading/unloading fees, detention charges, layover fees, rerouting charges, etc.). Shipper shall pay and Loadsmart shall collect these extra charges from Shipper in the manner provided in Section V.A. of this Agreement and Loadsmart shall inform Shipper of the occurrence and amount of such extra charges as soon as they are incurred or as soon as reasonably foreseeable.
(4) Any amount that Shipper fails to pay Loadsmart when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid, Shipper shall be liable for all costs and expenses Loadsmart incurs in connection with collection of that Shipment Fee, including costs and expenses of a third-party collection agency.
VI. FREIGHT LOSS OR DAMAGE
A. Carrier Freight Loss or Damage. Carrier agrees to assume full liability for the prompt, safe transportation of all Shipments under this Agreement, including compliance with applicable temperature requirements. Carrier agrees to be responsible for all loss, damage, delay, destruction, theft or liability of whatever nature arising from the transportation services in accordance with the applicable provisions of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. Carrier’s liability to Shipper and to any involved consignor or consignee shall be the full invoice value of the goods transported, without limitation. Notwithstanding the foregoing, Carrier’s maximum liability shall be $100,000 per shipment and, for used machinery, $.10/lb. or $25,000 per shipment, whichever is less. Higher levels of liability are available upon request in exchange for a higher Shipment Fee. Carrier shall not be liable for incidental, special, or consequential damages resulting from or related to loss, damage, or delay of any Shipment or its cargo. Signatures on Bills of Lading or receipts issued by Carrier shall not constitute Shipper’s written acceptance of Carrier’s liability limitations or other changes in these terms and conditions, whether appearing in Carrier’s bill of lading or tariffs or on its website. Carrier and Shipper agree that pursuant to 49 U.S.C. § 14101(b) Carrier expressly waives all rights and remedies under Title 49 of the U.S. Code that conflict with the terms and conditions of this User Agreement.
B. Cargo Loading, Unloading, and Securement. Shipper is solely responsible for loading, unloading, and securing cargo it transports under this Agreement, unless Shipper expressly requires Carrier and Carrier agrees to do so, and Shipper pays Carrier the corresponding costs and fees, if any.
C. Cargo Claims Filing. In the event of loss, damage, or delay, Shipper shall file a claim directly with Carrier – and not with Loadsmart – within nine (9) months of delivery, and Carrier shall settle or otherwise dispose of such claim, granting or denying the claim in whole or in part, within sixty (60) days of receipt of the claim. Carrier hereby assumes all other terms and conditions set forth in 49 U.S.C. § 14706. Shipper must commence any lawsuit arising from such claim within eighteen (18) months from disallowance or denial of all or any part of such claim. Carrier shall not dispose of damaged or rejected product without the prior written consent of Shipper.
VII. ELECTRONIC BILLS OF LADING
Shippers and Carriers may generate a Bill of Lading document and number using Loadsmart’s website bill of lading in lieu of preparing a paper document of their own. They also may upload their own Bills of Lading. They may elect to collect signatures electronically for pick-up and delivery of loads. Loadsmart is not responsible for either the accuracy of the Bill of Lading form used or the legal enforceability of the document, whether the paper version or the electronic version. Shippers and Carriers are cautioned to use this electronic functionality carefully and to read the BILL OF LADING CONTRACT TERMS AND CONDITIONS carefully to better understand their rights and liabilities.
Regardless of which form of Bill of Lading the parties use, if there are any inconsistencies between the terms and conditions of that Bill of Lading and those of this User Agreement, the terms and conditions of this Agreement shall govern.
User agrees and understands that it is responsible for maintaining the confidentiality of passwords associated with any account it uses to access the Loadsmart Service. Accordingly, User agrees that it is solely responsible to Loadsmart for all activities occurring under its Loadsmart account. If User becomes aware of any unauthorized use of its password or of its account, it agrees to notify Loadsmart immediately.
A. Site. Subject to the terms of this Agreement, Loadsmart grants User a non-transferable, non- exclusive, license to use the Site for its internal business use during the term of this Agreement.
B. Mobile App. Subject to the terms of this Agreement, Loadsmart grants User a non-transferable, non-exclusive, license to install and use the Mobile App, in executable object code format only, solely on User’s own handheld mobile device and for its internal business use during the term of this Agreement. See Section XIX of this Agreement for Mobile App terms.
C. Certain Restrictions. The rights granted to User in this Agreement are subject to the following restrictions: (i) User shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service; (ii) User shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (iii) User shall not access the Service in order to build a similar or competitive service; and (iv) except as expressly stated herein, User may not copy, reproduce, distribute, republish, download, display, post, or transmit in any form or by any means any part of the Service. All future releases, updates, and other additions to the functionality of the Service shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Service content must be retained on all copies thereof.
D. Limited Support. Users may contact Loadsmart’s technical support center for any support-related issues arising from the use of the Service by following the instructions on the Service.
E. App Stores. User acknowledges and agrees that the availability of the Mobile App is dependent on the third party from which it received the Mobile App (“App Store”). User acknowledges that this Agreement is between it and Loadsmart and not with the App Store. Each App Store may have its own terms and conditions to which User must agree before downloading the Mobile App. User agrees to comply with, and its license to use the Mobile App is conditioned upon its compliance with, all applicable terms and conditions set by the applicable App Store.
A. Ownership. Excluding its User Content, defined in Section XI below, User acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Service are owned by Loadsmart or Loadsmart’s licensors. The provision of the Service does not transfer to User or any third party any rights, title, or interest in or to such intellectual property rights. Loadsmart and its suppliers reserve all rights not granted in this Agreement.
B. Modification. Loadsmart reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. User agrees that Loadsmart will not be liable to User or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof. See Section XX (A) below for additional terms governing revisions.
C. Feedback. If User provides Loadsmart any feedback, suggestions, bug reports, system errors, and other information or ideas regarding the Service (“Feedback”), User hereby assigns to Loadsmart all rights in the Feedback and agrees that Loadsmart shall have the right to act upon and use such Feedback and related information in any manner it deems appropriate. Loadsmart will treat any Feedback User provides to Loadsmart as non-confidential and non-proprietary. User agrees that it will not submit any information or ideas to Loadsmart that it considers confidential or proprietary.
XI. USER CONTENT
A. User Content. “User Content” means all information, data, and other content a User submits to or uses with the Service. User Content includes the information provided in a Shipment request or acceptance. Each User is solely responsible for its User Content. User assumes all risks associated with use of its User Content, including any reliance by others on its accuracy, completeness, or usefulness, or any disclosure of its own User Content that makes that User or any third party personally identifiable. Each User hereby represents and warrants that its User Content does not violate the Acceptable Use Policy, defined in Section XII below. To avoid doubt, User Content may include third-party content that User submits. User agrees not to submit third-party content unless it has the consent of the applicable third-party owner of such content. User may not state or imply that its User Content is in any way provided, sponsored, or endorsed by Loadsmart. Because each User alone is responsible for its User Content (and not Loadsmart), User may be exposed to liability if, for example, its User Content violates the Acceptable Use Policy. Because Loadsmart does not control User Content, User acknowledges and agrees that Loadsmart is not responsible for any User Content, and Loadsmart makes no guarantees regarding the accuracy, currency, suitability, or quality of any User Content and assumes no responsibility for any User Content or any reliance upon it.
B. User Content License. User grants, and it represents and warrants that it has the right to grant, to Loadsmart an irrevocable, nonexclusive, royalty-free and fully paid, sublicenseable, worldwide license, to use User’s User Content solely for the purposes of including its User Content in the Service and to create Anonymous Data. All rights in and to the User Content not expressly granted to Loadsmart in this Agreement are reserved by User.
C. Creation of Anonymous Data. Loadsmart may create anonymous data records (“Anonymous Data”) from User’s User Content by using commercially reasonable efforts to exclude any and all information (such as company name) that makes the data identifiable to any particular User. Loadsmart may use and disclose Anonymous Data for any purpose, including to improve the Service.
D. Certain Disclosures. Loadsmart may share User’s User Content (i) with Loadsmart’s third-party service providers; (ii) with the acquiring company if another company acquires User’s company, business, or its assets, including through bankruptcy; and (iii) to comply with relevant laws, to respond to served subpoenas or warrants, to protect or defend Loadsmart or its User’s rights or property, and/or to investigate or assist in preventing any violation or potential violation of the law or this Agreement.
XII. ACCEPTABLE USE POLICY
The following sets forth Loadsmart’s “Acceptable Use Policy”:
A. User agrees not to use the Service to collect, upload, transmit, display, or distribute any User Content that (i) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (iii) violates any rule, law, or regulation or any obligation or restriction imposed by any third party.
B. User agrees not to use the Service to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather or assemble information or data regarding other Users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service or violate the regulations, policies, or procedures of such networks; (v) attempt to gain unauthorized access to the Service or other computer systems or networks connected to or used together with the Service, through password mining or other means; (vi) harass or interfere with another User’s use and enjoyment of the Service; or (vii) introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests, and queries, or to strip, scrape, or mine data from the Service.
C. Loadsmart reserves the right (but has no obligation) in its sole discretion to review any User Content, investigate, and/or take appropriate action against any User (including removing or modifying User’s User Content, terminating User’s Account in accordance with Section XIII below and/or reporting User to law enforcement authorities) if User violates the Acceptable Use Policy or any other provision of this Agreement or otherwise creates liability for Loadsmart or any other person.
XIII. TERM AND TERMINATION
Subject to the provisions of this Section, this Agreement will remain in full force and effect while as User you use the Service. Loadsmart may at any time in its sole discretion terminate this Agreement with User if (i) User has breached any provision of this Agreement (or has acted in a manner that clearly shows User does not intend to, or is unable to, comply with this Agreement); (ii) Loadsmart is required to do so by law (for example, where the provision of the Service is, or becomes, unlawful); (iii) Loadsmart has elected to discontinue the Service as described above; or (iv) Loadsmart deems User’s performance as a Shipper or Carrier is poor and may adversely affect the credibility or effectiveness of the Loadsmart Service. Upon termination of this Agreement, User’s Account and right to access and use the Service will terminate immediately. Loadsmart will have no liability whatsoever to User for any termination of this Agreement, including for termination of User’s Account or deletion of its User Content. Following termination of this Agreement, Sections IX(C) and Sections X-XX of this Agreement will remain in effect.
In addition to other indemnities expressly provided in this Agreement, each User agrees to defend, indemnify, including for costs and attorneys’ fees, and hold Loadsmart and its officers, employees, and agents, harmless, from and against any claim or demand made by any third party due to or arising out of User’s (i) use of the Service; (ii) User Content; (iii) interaction with any other User; (iv) violation of this Agreement; (v) violation of applicable laws or regulations; or (vi) User’s shipment contents (if you are a Shipper) or User’s transportation shipment services (if you are a Carrier), to the extent such claim or demand does not result entirely from the negligence or willful misconduct of Loadsmart. Loadsmart reserves the right, at User’s expense, to assume the exclusive defense and control of any matter for which User is required to indemnify Loadsmart, and User agrees to cooperate with Loadsmart’s defense of these claims. User agrees not to settle any matter without the prior written consent of Loadsmart. Loadsmart will use reasonable efforts to notify User of any such claim, action, or proceeding upon becoming aware of it.
XV. DISCLAIMERS AND RELEASE
LOADSMART MAKES EVERY REASONABLE EFFORT TO KEEP ITS LOADSMART PLATFORM UP, BUG-FREE, AND SAFE, BUT ALL USERS USE IT AT THEIR OWN RISK. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND LOADSMART (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. LOADSMART (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE: (A) WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE; OR (D) RESULT IN ANY REVENUE, PROFITS, OR COST REDUCTION. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LOADSMART IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
LOADSMART OFFERS A TECHNOLOGY PLATFORM TO CONNECT SHIPPERS AND CARRIERS, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE SHIPPING OR TRANSPORTATION SERVICES OR ACT IN ANY WAY AS A CARRIER, COURIER, SHIPPER, SHIPPING PROVIDER OR FREIGHT FORWARDER. IT IS UP TO THE THIRD-PARTY CARRIER TO PROVIDE SHIPPING AND TRANSPORTATION SERVICES WHICH MAY BE SCHEDULED THROUGH THE USE OF THE SERVICE. LOADSMART HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SHIPPING OR TRANSPORTATION SERVICES PROVIDED TO SHIPPERS BY SUCH THIRD-PARTY CARRIERS. LOADSMART SHALL NOT BE DEEMED TO BE AN AGENT, A PARTNER, OR A JOINT VENTURER OF CARRIER OR SHIPPER FOR ANY REASON. CARRIERS SHALL NOT BE DEEDED TO BE SUBCONTRACTORS OR EMPLOYEES OF LOADSMART FOR ANY REASON.
DRIVING WHILE USING CELL OR SMART PHONES IS DANGEROUS AND IS AGAINST THE LAW IN MANY JURISDICTIONS. DO NOT USE THE MOBILE APP WHILE DRIVING. IF YOU USE THE MOBILE APP WHILE DRIVING, USER DOES SO AT ITS OWN RISK.
LOADSMART DOES NOT ASSESS THE SUITABILITY, LEGALITY, REGULATORY COMPLIANCE, QUALITY, OR ABILITY OF ANY CARRIER, SHIPPER, SHIPPED ITEMS, AND SHIPPING OR TRANSPORTATION SERVICES SCHEDULED THROUGH THE USE OF THE SERVICE, AND LOADSMART MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE FOREGOING. BY USING THE SERVICE, USER OR THE SHIPMENTS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL, UNSAFE, OR OTHERWISE OBJECTIONABLE. USERS USE THE SERVICE AT THEIR OWN RISK. USERS’ INTERACTIONS WITH OTHER USERS AND THIRD PARTIES ARE SOLELY BETWEEN THOSE USERS AND SUCH USER OR THIRD PARTY. USER AGREES THAT LOADSMART WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN YOU AS A USER AND ANY OTHER USER OR THIRD PARTY, LOADSMART IS UNDER NO OBLIGATION TO BECOME INVOLVED.
USER HEREBY WAIVES AND RELEASES LOADSMART (AND ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS) FROM, AND HEREBY WAIVES AND RELINQUISHES, EACH AND EVERY PAST, PRESENT AND FUTURE DISPUTE, CLAIM, CONTROVERSY, DEMAND, RIGHT, OBLIGATION, LIABILITY, ACTION AND CAUSE OF ACTION OF EVERY KIND AND NATURE (INCLUDING PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE), ARISING FROM USER’S USE OF THE SERVICE, OR IN ANY WAY RELATED TO OTHER USERS OR THIRD PARTIES. IF YOU AS A USER ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. ACCORDINGLY, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
XVI. LIMITATION ON LIABILITY
IN NO EVENT SHALL LOADSMART (OR ITS SUPPLIERS) BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR USER’S USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF LOADSMART HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, LOADSMART’S (AND ITS SUPPLIERS’) LIABILITY TO USER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY DOLLARS ($50) OR (B) THE AGGREGATE OF THE AMOUNTS USER HAS PAID LOADSMART IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AS A USER, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
XVII. THIRD PARTY SITES & ADS
The Service might contain links to third-party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). These Third Party Sites & Ads are not under the control of Loadsmart, and Loadsmart is not responsible for any Third Party Sites & Ads. Loadsmart provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. Users use all Third Party Sites & Ads at their own risk. When User links to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. User should make whatever investigation User feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
XVIII. COPYRIGHT POLICY AND PERSONAL INFORMATION PRIVACY
A. Copyright Policy
Loadsmart respects the intellectual property of others and asks all Users of its Service do the same. In connection with the Service, Loadsmart has adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of Users that are repeat infringers of intellectual property rights, including copyrights. If you as a User believe that one of Loadsmart’s Users is, through the use of the Service, unlawfully infringing the copyright(s) in a work and wish to have the allegedly infringing material removed, the following information in the form of a written notification, pursuant to 17 U.S.C. § 512(c), must be provided to Loadsmart’s designated Copyright Agent:
(1) your physical or electronic signature;
(2) identification of the copyrighted work(s) you claim have been infringed;
(3) identification of the material on Loadsmart’s Service you claim is infringing and you request be removed;
(4) sufficient information to permit Loadsmart to locate such material;
(5) your address, telephone number, and e-mail address;
(6) a statement that you have a good faith belief the use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
(7) a statement that the information in the notification is accurate and, under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or you are authorized to act on behalf of the copyright owner.
B. Personal Information Privacy
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs, and attorney’s fees Loadsmart incurs in connection with the written notification and allegation of copyright infringement.
XIX. APPLE APP STORE ADDITIONAL TERMS AND CONDITIONS
The following additional terms and conditions apply to you as a User if you are using a Mobile App from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section XIX, the more restrictive or conflicting terms and conditions in this Section apply, but solely with respect to Mobile Apps from the Apple App Store.
A. Acknowledgement: Loadsmart and you as a User acknowledge that this Agreement is concluded between Loadsmart and you only, and not with Apple, and that Loadsmart, not Apple, is solely responsible for the Mobile App and the content thereof. To the extent this Agreement provides for usage rules for the Mobile App that are less restrictive than the Usage Rules set forth for the Mobile App in the App Store Terms of Service, or is otherwise in conflict with those Terms of Service, the more restrictive or conflicting Apple term applies.
B. Scope of License: The license granted to you as a User for the Mobile App is limited to a nontransferable license to use the Mobile App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
C. Maintenance and Support: Loadsmart is solely responsible for providing any maintenance and support services with respect to the Mobile App, as specified in this Agreement (if any), or as required under applicable law. Loadsmart and you as User acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App.
D. Warranty: Loadsmart is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Mobile App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Loadsmart’s sole responsibility.
E. Product Claims: Loadsmart and you as a User acknowledge that Loadsmart, not Apple, is responsible for addressing any claims of you or any third party relating to the Mobile App or your possession and/or use of the Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Loadsmart’s liability to you beyond what is permitted by applicable law.
F. Intellectual Property Rights: Loadsmart and you as a User acknowledge that, in the event of any third party claim that the Mobile App or your possession and use of the Mobile App infringes that third party’s intellectual property rights, as between Loadsmart and Apple, Loadsmart, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
G. Legal Compliance: You as User represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
H. Developer Name and Address: Loadsmart’s contact information for any end-user questions, complaints, or claims with respect to the Mobile App is set forth in Section XX(K).
I. Third-Party Terms of Agreement: You as User must comply with applicable third-party terms of agreement when using the Mobile App.
J. Third Party Beneficiary: Loadsmart and you as User acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
A. Changes to Terms of Service. This Agreement is subject to occasional revision, and if Loadsmart makes any substantial changes, it will attempt to notify you as a User by providing you an option to accept the new terms before your next use of the Service or by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on the Service. Any changes to this Agreement will be effective upon the earlier of (i) the date you accept the new terms or (ii) thirty (30) calendar days following Loadsmart’s transmission of an e-mail notice to you (if applicable) or (iii) thirty (30) calendar days following Loadsmart’s posting of notice of the changes on the Service. These changes will be effective immediately for new Users of the Service. As a User, you are responsible for providing Loadsmart with your most current e-mail address. In the event the last e-mail address you provided Loadsmart is not valid, or for any reason is not capable of delivering to you the notice described above, Loadsmart’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Your continued use of the Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
B. Dispute Resolution. Any claim, cause of action, or dispute (claim) that you as a User has with Loadsmart arising out of or relating to this Agreement must be brought exclusively in a state or federal court located in the State of New York. The laws of the State of New York will govern this Agreement, as well as any claim that might arise between you and Loadsmart, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in New York City, NY for the purpose of litigating all such claims.
C. Force Majeure. Any delay in the performance of any duties or obligations of any party to this Agreement (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party.
D. Entire Agreement. This Agreement constitutes the entire agreement between you as User and Loadsmart regarding the use of the Service. Loadsmart’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement may be executed in counterparts.
E. No Agent. Neither party is an agent or partner of or a joint venturer with the other.
F. Assignment. This Agreement, and your rights and obligations herein as User, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Loadsmart’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
G. Press. You as User hereby grant Loadsmart permission to identify you as a customer of Loadsmart or user of its Service and to reproduce your name and logo on the Site and in any other marketing materials.
H. Conflict. If there is any conflict or inconsistency between the terms and conditions set forth in this Agreement and the terms set forth in any Bill of Lading, Proof of Delivery, or any other shipping form, notation, sticker, tariff, or website, the terms and conditions of this Agreement shall control over such terms.
I. Copyright/Trademark Information. All trademarks, logos, and service marks (“Marks”) displayed on the Service are Loadsmart’s property or the property of other third parties. You as User are not permitted to use these Marks without Loadsmart’s prior written consent or the consent of such third party, which may own the Marks.
J. Electronic Communications. The communications between you and Loadsmart use electronic means, whether you use the Service or send Loadsmart e-mails, or whether Loadsmart posts notices on the Service or communicates with you via e-mail. For contractual purposes, you as User (i) consent to receive communications from Loadsmart in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Loadsmart provides to you as User electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
K. Contact Information:
Address: 39 Wooster Street, 3rd Floor
New York, NY 10013