Terms of Service
August 1, 2023
Effective December 12, 2023
Welcome, and thank you for your interest in TruckSmarter, Inc. (“TruckSmarter,” “we,” or “us”) and our website at www.trucksmarter.com, along with our related websites, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service (“Terms”) are a legally binding contract between you and TruckSmarter regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THESE TERMS. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, DO NOT USE THE SERVICE. YOUR USE OF THE SERVICE, AND TRUCKSMARTER’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY TRUCKSMARTER AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE.EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 16, AND UNLESS YOU EXERCISE THE RIGHT TO OPT OUT AS DESCRIBED IN SECTION 16, YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS OR OTHERWISE RELATED TO THE SERVICE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, ANDBY ACCEPTING THESE TERMS, YOU AND TRUCKSMARTER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURTTO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. (SEE SECTION 16.)
We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Service (“Supplemental Terms”). Any Supplemental Terms become part of your agreement with us if you use the applicable Service, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.
1. TruckSmarter service overview
TruckSmarter is a carrier-first tech company that builds products and services to superpower truck drivers’ lives by helping them manage their business more effectively.
For example, TruckSmarter offers a load board, whereby users can view and book loads with brokers.
TruckSmarter also offers a service whereby TruckSmarter purchases unpaid invoices from carriers (the “Factoring Service”). The Factoring Service allows carriers that have unpaid commercial invoices to sell TruckSmarter the right to payment owed to such carrier by the party indebted to that carrier under the unpaid invoice (the “Broker”). For purposes of these Terms, the term “Broker” includes any shipper or consignee.
TruckSmarter also operates a platform that allows truck drivers or other users (such as fleet operators or dispatchers) (each, a “Purchaser”) to purchase fuel from participating truck stops (“Truck Stops”) for use by a truck owned or operated by or on behalf of a Purchaser (a “Truck”). When a Purchaser makes a purchase of fuel through the Service, TruckSmarter will deliver a fuel code on behalf of the Truck Stop that is redeemable by Purchaser or its designee at the selected Truck Stop (“Fuel Code”). Truck Stops are the sellers of all fuel purchased with Fuel Codes and are solely responsible to you for the quality and delivery of the fuel provided in connection with your use of Fuel Codes. Operators of Truck Stops that participate in the Service by accepting Fuel Codes are referred to in these Terms as “Merchants”.
You must be at least 18-years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18-years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
Our Service is designed for use only by sole proprietors and other businesses for their internal business purposes. You agree not to use our Service as a consumer for personal, family or household purposes.
For purposes of these Terms, “you” and “your” means you as the user of the Service. If you use the Service on behalf of a company or other legal entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms of Service on the entity's behalf.
3. Accounts and registration
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other information. 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. When you register, you will be asked to provide a password. 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. You agree to only use a unique password that you do not use with any other website or online service. If you believe that there has been any unauthorized access or use of your account or account credentials, then you must immediately notify us at firstname.lastname@example.org. Additionally, you agree that TruckSmarter will not be responsible for carrying out any instructions or authorizations that you give to TruckSmarter regarding any of your account log-ins or passwords and hereby waive any claims you may have against TruckSmarter arising out of or related to TruckSmarter carrying out such instructions or authorizations.
4. General payment terms
Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
TruckSmarter reserves the right to determine pricing for the Service. TruckSmarter will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. TruckSmarter may change the fees for any feature of the Service, including additional fees or charges, but will give you advance notice of changes before they apply. TruckSmarter, at its sole discretion, may make promotional offers with different features and different pricing to any of TruckSmarter’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
You authorize TruckSmarter to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by TruckSmarter, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, TruckSmarter may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.3 Delinquent accounts
TruckSmarter may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, if you have a delinquent account, you will be responsible for paying fees or charges that are incidental to any chargeback or collection of any of the unpaid amount, including collection fees.
5. General payment terms
5.1 Limited license
Subject to your complete and ongoing compliance with these Terms, TruckSmarter grants you, solely for your own internal use in connection with your transportation business, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service. Any use of the Service other than as specifically authorized herein, without our prior written permission, is strictly prohibited.
5.2 License restrictions
Except and solely to the extent such a restriction is impermissible under applicable law, you agree not to: (a) reproduce, distribute, publicly display, or publicly perform the Service; or (b) make modifications to or otherwise create derivative works of the Service; or (c) take any other action prohibited by these Terms (including Section 10) or (d) use the Service other than as authorized in these Terms (including Section 5.1). If you are prohibited under applicable law from using the Service, you may not use it.
If you choose to provide input or suggestions regarding problems with or proposed modifications or improvements to the Service or our company or business generally (“Feedback”), then you hereby grant TruckSmarter an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner without compensation to you, and for any purpose, including to improve the Service and create other products and services.
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 these Terms.
7.1 Third-party services and linked websites
TruckSmarter may provide tools through the Service that enable you to export information, including User Content (defined below), to or otherwise integrate with or access third-party services or websites, including by providing your login credentials to allow TruckSmarter to connect your Broker accounts to the Service. By using one of these tools, you agree that TruckSmarter may transfer that information to or otherwise establish a connection with the applicable third-party service. You also authorize us to use your stored Broker login credentials to connect your account with other Broker accounts where you use the same credentials. Third-party services and websites 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. TruckSmarter is not affiliated with or sponsored or endorsed by the third parties that provide these services or websites, including any Brokers.
By accessing our Service and/or providing us with login information for a third-party service, you expressly consent and authorize us to (i) use login information to access third-party data on your behalf, (ii) electronically retrieve third party data on your behalf; (iii) bid and book loads through or with third parties on your behalf; (iv) validate carrier information; and (v) validate load information. TruckSmarter is not responsible for the load board information collected from a third party. We may block or disable access to any third-party services (in whole or in part) through our Service at any time.
7.2 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 these Terms, nothing in these Terms 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.
7.3 Banking and transaction partners
7.4 Indemnification of third-party service providers
To the fullest extent permitted by law, you are responsible for your use of the Service, including your use of any third-party services or platforms available through or in connection with the Service. You will defend and indemnify TruckSmarter’s third-party service providers, including Blue Ridge Bank, Thread Bank, and Unit, 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 your use or misuse of the applicable third-party services, including your breach of these Terms or any agreement of the applicable third-party service. In the event that TruckSmarter defends and indemnifies the applicable third-party service provider for such a claim, you will indemnify TruckSmarter in turn for any related liability, damage, loss, and expense, including attorneys’ fees and costs, in accordance with Section 13.
8. User content
8.1 User content generally
Certain features of the Service may permit users to upload content to the Service, including messages, forum posts, photos, video, images, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
8.2 Limited license grant to TruckSmarter
By providing User 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 User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
8.3 Limited license grant to other users
By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
8.4 Specific rules for photographs and images
If you post a photograph or image to the Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Service, Facebook, Instagram, and Twitter, but not to promote any third-party product, good or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
8.5 User content representations and warranties
TruckSmarter disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize TruckSmarter and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by TruckSmarter, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, 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
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.6 User content disclaimer
We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. TruckSmarter may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against TruckSmarter with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, TruckSmarter does not permit copyright-infringing activities on the Service.
8.7 Monitoring content
9.1 Text messaging
TruckSmarter and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF ALL MESSAGES FROM TRUCKSMARTER, YOU CAN EMAIL SUPPORT@TRUCKSMARTER.COM OR REPLY THE WORD “STOPALL” TO THE TEXT MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request.
9.2 Push notifications
When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “account” page.
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.
10. 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: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) 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 user’s account without permission of us and that user, or falsifying your age or date of birth;
develop or use any applications that interact with our Service without our prior written consent;
use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Service, provided that TruckSmarter grants to the operators of public search engines permission to use spiders to index materials from the website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials and only consistent with our robot.txt files. TruckSmarter reserves the right to revoke such permission either generally or in specific cases, at any time;
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Modification of terms
We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. We will provide you with notice of such changes by sending an email, providing a notice through our Service or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective upon expiration of that 7-day period, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. Unless material changes are made to the arbitration provision under Section 16, you agree that modification of these Terms does not create a new right to opt out of arbitration.
12. Term, termination, and modification of the Service
These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 12.2.
If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, TruckSmarter may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at email@example.com.
12.3 Effect of Termination
Upon termination of these Terms: (a) any license rights TruckSmarter grants under these Terms terminate immediately 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 amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and all other sections of these Terms will survive.
12.4 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, with or 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.
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 our 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 these Terms, any representation, warranty, or agreement referenced in these Terms, 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 third-party service providers in connection with the Service; or (f) your use or misuse of any third-party service in connection with the Service. You will promptly notify the TruckSmarter Entities of any third-party claims and cooperate with the TruckSmarter Entities in defending such claims. 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).
14. Disclaimers; No warranties
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, INCLUDING THIRD-PARTY SERVICE CONNECTIONS OR INFORMATION, 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.
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 THESE TERMS. 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.
THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 15 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.
15. Limitation of liability
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.
EXCEPT AS PROVIDED IN SECTION 17.6 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 THESE TERMS, 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 OR (B) US$100.
EACH PROVISION OF THESE TERMS 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 THESE TERMS. 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 THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE LIMITATIONS SET FOR IN THIS SECTION 16 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT OF TRUCKSMARTER OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
16. Dispute resolution and arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND TRUCKSMARTER TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND TRUCKSMARTER FROM SUING IN COURT OR HAVING A JURY TRIAL.
In the interest of resolving disputes between you and TruckSmarter in the most expedient and cost effective manner, and except as described in Section 16.2 and 16.4, you and TruckSmarter agree that every dispute arising in connection with these Terms 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 these Terms or the Service, 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 these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TRUCKSMARTER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT
Despite the provisions of Section 16.1, nothing in these Terms 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.
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms 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 16 will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
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 these Terms. 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.
16.5 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., Attention: Legal Department, 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.
If you commence arbitration in accordance with these Terms, 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.
16.7 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.
16.8 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.
If Section 16.7 or the entirety of this Section 16 is found to be unenforceable, or if TruckSmarter receives an Opt-Out Notice from you, then the entirety of this Section 16 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17.2 will govern any action arising out of or related to these Terms.
17.1 General terms
These Terms, together with any Supplemental Terms, and any other agreements to which TruckSmarter is bound that are expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and TruckSmarter regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms 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 these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms 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.
17.2 Governing law
These Terms are 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 these Terms. 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.
17.4 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, these Terms.
17.5 Consent to electronic communications
17.6 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 firstname.lastname@example.org.
17.7 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.
17.8 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.
17.9 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.
18. Notice regarding Apple
This Section 18 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and TruckSmarter only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
19. Notice Regarding Android
that contains the Android mobile operating system (the “Android App”) developed by Google, Inc. (“Google”): (a) you acknowledge that these Terms are between you and us only, and not with Google; (b) your use of our Android App must comply with Google’s then-current Android Market Terms of Service; (c) Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for our Android App and the Service and content available thereon. Google has no obligation or liability to you with respect to our Android App or these Terms; and (d) Google is a third-party beneficiary to the Terms as they relate to our Android App.