Broker Terms of Service
October 27, 2022
1. TruckSmarter broker service overview
TruckSmarter is a carrier-first tech company that builds software to superpower truck drivers’ lives by helping them manage their business more effectively. Brokers can host and manage loads, including relevant details regarding such loads, through the Service for the drivers (“Drivers”) to view. Once a Driver selects a load, they can connect to the Broker and book the load through the means specified by the Broker. Any arrangement of transportation is between the Broker and the Driver. TruckSmarter is not a broker, is not providing the services of a broker, and does not hold itself out as selling, providing, or arranging for, transportation by motor carrier for compensation.
2. Accounts and registration
You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@trucksmarter.com.
3. General payment terms
You agree to pay the fees for access to the Service as a Broker (the “Service Fees”) as set forth in the order form between you and TruckSmarter (the “Order Form”) attached hereto as Exhibit A and hereby incorporated by this reference into this Agreement. TruckSmarter reserves the right to determine the Service Fees and to institute new charges and Service Fees upon 30 days’ prior notice to you or as otherwise set forth in the Order Form.
4. Licenses
4.1. Limited license
Subject to your complete and ongoing compliance with this Agreement, TruckSmarter grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
4.2. License restrictions
Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
4.3. Feedback
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant TruckSmarter an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
5. Ownership; Proprietary rights
The Service is owned and operated by TruckSmarter. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by TruckSmarter are protected by intellectual property and other laws. All Materials included in the Service are the property of TruckSmarter or its third-party licensors. Except as expressly authorized by TruckSmarter, you may not make use of the Materials. TruckSmarter reserves all rights to the Materials not granted expressly in this Agreement.
6. Third-party terms
Third-Party Services and Linked Websites. TruckSmarter may provide tools through the Service that enable you to export information to third-party services. By using one of these tools, you agree that TruckSmarter may transfer that information to the applicable third-party service. Third-party services are not under TruckSmarter’s control, and, to the fullest extent permitted by law, TruckSmarter is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under TruckSmarter’s control, and TruckSmarter is not responsible for their content.
Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
7. Broker content
7.1. Broker content generally
Certain features of the Service may permit you to upload content to the Service, including load information (“Broker Content”) and to publish Broker Content on the Service. You retain any copyright and other proprietary rights that you may hold in the Broker Content that you post to the Service.
7.2. Limited license grant to TruckSmarter
By providing Broker Content to or via the Service, you grant TruckSmarter a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your Broker Content, in whole or in part, through the Service. Notwithstanding anything to the contrary, TruckSmarter shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Broker Content and data derived therefrom), and TruckSmarter will be free (during and after the Term) to (a) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other TruckSmarter offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
7.3. Limited license grant to other users
By providing Broker Content to or via the Service to other users of the Service, including Drivers, you grant those users a non-exclusive license to access and use that Broker Content as permitted by this Agreement and the functionality of the Service.
7.4. Broker content representations and warranties
TruckSmarter disclaims any and all liability in connection with Broker Content. You are solely responsible for your Broker Content and the consequences of providing Broker Content via the Service. By providing Broker Content via the Service, you affirm, represent, and warrant to us that:
you are the creator and owner of the Broker Content, or have the necessary licenses, rights, consents, and permissions to authorize TruckSmarter and users of the Service to use and distribute your Broker Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by TruckSmarter, the Service, and this Agreement;
your Broker Content, and the use of your Broker Content as contemplated by this Agreement, does not and will not: (i) infringe, violate, or misappropriate 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) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause TruckSmarter to violate any law or regulation; and
your Broker Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
7.5. Monitoring broker content
TruckSmarter does not control and does not have any obligation to monitor: (a) Broker Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that TruckSmarter reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time TruckSmarter chooses to monitor the content, TruckSmarter still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below).
8. Communications
8.1. Text messaging & phone calls
You agree that TruckSmarter and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational calls or messages about your use of the Service, as well as marketing calls or messages. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM TRUCKSMARTER, YOU CAN EMAIL SUPPORT@TRUCKSMARTER.COM OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM TRUCKSMARTER, YOU CAN EMAIL SUPPORT@TRUCKSMARTER.COM OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing calls and texts is not a condition of any purchase on or use of the Service.
8.2. Email
We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
9. Prohibited conduct
BY USING THE SERVICE, YOU AGREE NOT TO:
use the Service for any illegal purpose or in violation of any local, state, national, or international law;
harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
sell or otherwise transfer the access granted under this Agreement or any Materials (as defined in Section 5) or any right or ability to view, access, or use any Materials; or
attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
10. Term, termination, and modification of the service
10.1. Term
Unless otherwise set forth in an applicable Order Form, this Agreement is effective beginning on the Effective Date and will continue for an initial 1-year period (the “Initial Term”). At the end of the Initial Term, the Agreement will automatically renew for successive one (1)-month renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party gives 30 days’ notice of non-renewal or this Agreement is otherwise terminated as described in Section 10.2.
10.2. Termination
TruckSmarter may, at its sole discretion, terminate this Agreement or your account on the Service, or suspend or terminate your access to the Service with 30 days’ written notice. You may terminate your account and this Agreement for any reason or no reason with 30 days’ written notice. TruckSmarter may terminate this Agreement for your material breach in the event you fail to remedy such breach within 30 days.
10.3. Effect of termination
Upon termination of this Agreement: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay TruckSmarter any unpaid amounts that were due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 4.3, 5, 10.3, 11, 12, 13, 14 and 15 will survive.
10.4. Modification of the service
TruckSmarter reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. TruckSmarter will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
11. Indemnity
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify TruckSmarter, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “TruckSmarter Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; (e) any inaccurate information provided from you (whether directly or indirectly) to other users, including Drivers, or third parties in connection with the Service; or (f) your use or misuse of any third-party service in connection with the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
12. Disclaimers; No warranties
12.1.
By using the Service, you agree to and acknowledge the following:
TruckSmarter is not a broker, is not providing the services of a broker, and does not hold itself out as selling, providing, or arranging for, transportation by motor carrier for compensation;
TruckSmarter has no control over the quality, safety, or legal aspects of the transactions between Broker and any Driver;
TruckSmarter makes no representations or warranties with respect to the Drivers, and Broker assumes all risk in tendering loads, verifying safety, licensing, authority, insurance, credit, cargo liability and invoicing terms of the Drivers you may connect with through the Service;
TruckSmarter does not endorse or make any claims as to the accuracy of any information that may be provided by a Driver to Broker through the Service;
TruckSmarter does not guarantee any coverage for the loads Broker posts on the Service; and
TruckSmarter is not a party to any transaction between Broker and any Driver.
12.2.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TRUCKSMARTER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TRUCKSMARTER DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND TRUCKSMARTER DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
12.3.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR TRUCKSMARTER ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TRUCKSMARTER ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
12.4.
THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 12 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. TruckSmarter does not disclaim any warranty or other right that TruckSmarter is prohibited from disclaiming under applicable law.
13. Limitation of liability
13.1.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TRUCKSMARTER ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TRUCKSMARTER ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
13.2.
EXCEPT AS PROVIDED IN SECTION 14.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TRUCKSMARTER ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO TRUCKSMARTER FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (B) US$100.
13.3.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Dispute resolution and arbitration
14.1 Generally
In the interest of resolving disputes between you and TruckSmarter in the most expedient and cost effective manner, and except as described in Section 14.2 and 14.4, you and TruckSmarter agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND TRUCKSMARTER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
14.2. Exceptions
Despite the provisions of Section 14.1, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
14.3. Opt-out
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 14 within 30 days after the date that you agree to this Agreement by sending a letter to TruckSmarter, Inc., Attention: Legal Department – Arbitration Opt-Out, 307 5th St., Suite B, San Francisco, CA 94107 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once TruckSmarter receives your Opt-Out Notice, this Section 14 will be void and any action arising out of this Agreement will be resolved as set forth in Section 15.4. The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.
14.4. Arbitrator
Any arbitration between you and TruckSmarter will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting TruckSmarter. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
14.5. Notice of arbitration; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). TruckSmarter’s address for Notice is: TruckSmarter, Inc., 307 5th St., Suite B, San Francisco, CA 94107. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or TruckSmarter may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or TruckSmarter must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by TruckSmarter in settlement of the dispute prior to the award, TruckSmarter will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
14.6. Fees
If you commence arbitration in accordance with this Agreement, TruckSmarter will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse TruckSmarter for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
14.7. No class actions
YOU AND TRUCKSMARTER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and TruckSmarter agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
14.8. Modifications to this arbitration provision
If TruckSmarter makes any future change to this arbitration provision, other than a change to TruckSmarter’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to TruckSmarter’s address for Notice of Arbitration, in which case your account with TruckSmarter will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
14.9. Enforceability
If Section 14.7 or the entirety of this Section 14 is found to be unenforceable, or if TruckSmarter receives an Opt-Out Notice from you, then the entirety of this Section 14 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 15.4 will govern any action arising out of or related to this Agreement.
15. Miscellaneous
15.1. General Terms
This Agreement, together with the Broker Privacy Policy and any other agreements expressly incorporated by reference into this Agreement, is the entire and exclusive understanding and agreement between you and TruckSmarter regarding your use of the Service as a Broker. You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
15.2. Notices
All notices permitted or required under this Agreement will be in writing and will be delivered by personal delivery, e-mail, or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, 5 business days after deposit in the U.S. mail, or upon confirmation of transmission if sent by e-mail. Notices will be sent to each party at their respective addresses as set forth in this Agreement.
15.3. Independent contractors
TruckSmarter and Broker are independent contractors. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
15.4. Governing law
This Agreement is governed by the laws of the State of California without regard to conflict of law principles. You and TruckSmarter submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under this Agreement. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
15.5. Privacy policy
Please read the TruckSmarter Broker Privacy Policy [link to privacy policy] (the “Broker Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The TruckSmarter Broker Privacy Policy is incorporated by this reference into, and made a part of, this Agreement.
15.6. Additional terms
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
15.7. Consent to electronic communications
By using the Service, you consent to receiving certain electronic communications from us as further described in the Broker Privacy Policy. Please read the Broker Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
15.8. Contact information
The Service is offered by TruckSmarter, Inc., located at 307 5th St., Suite B, San Francisco, CA 94107. You may contact us by sending correspondence to that address or by emailing us at support@trucksmarter.com.
15.9. Notice to California residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
15.10. No support
We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
15.11. International use
The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.