These TruckAtlas Platform Terms and Conditions of Use, together with the incorporated by reference below (collectively, this “Agreement”) are entered into by and between the company accepting this Agreement (the “Platform User”) and TruckWise, LLC, a Georgia limited liability company (“TruckAtlas”). Capitalized terms used herein shall have the meaning ascribed to them in this Agreement.
This Agreement sets forth the terms under which the Platform User may utilize (i) TruckAtlas’ online (including website and/or mobile application based) logistics and transport platform available at www.truckatlas.com, or in the iOS or the Android app stores (the “Platform”) and (ii) the TruckAtlas Services provided through the Platform (the “TruckAtlas Services”).
BY REGISTERING AND OPENING AN ACCOUNT ON THE PLATFORM, THE PLATFORM USER AGREES TO BE BOUND BY THIS AGREEMENT. IF THE PLATFORM USER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN THE PLATFORM USER MAY NOT ACCESS OR USE THE PLATFORM OR TRUCKATLAS SERVICES.
The Platform User’s use of the Platform and the TruckAtlas Services is subject to this Agreement. This Agreement may be amended, modified, or updated by TruckAtlas from time to time, effective upon posting of an updated version of this Agreement on the Platform. TruckAtlas will provide the Platform User notice of any such amendments, modifications, or updates through the email TruckAtlas has on file, through the Platform, or by updating the date at the top of these TruckAtlas Platform Terms and Conditions of Use. The Platform User is responsible for updating contact information through the Platform and regularly reviewing the Platform and this Agreement for updates and information from TruckAtlas. Continued use of the Platform after any such amendments, modifications or updates shall constitute the Platform User’s consent to such changes. Please review this Agreement periodically for any changes.
1. PROVISION OF SERVICES
1.1 Access to Services. TruckAtlas will establish a corporate account that will enable the Platform User to access the Platform and the TruckAtlas Services that may be offered there from time to time. The Platform User agrees to pay all applicable charges for the TruckAtlas Services booked, tendered, or otherwise purchased on the Platform, and the Platform User agrees that it is responsible for all charges incurred by the Platform User and any individual authorized by the Platform User to use the Platform (such individual a “Motor Carrier User” (including a Motor Carrier’s Driver (as defined in Section 6 below), or a “Shipper User”, and collectively, the “End Users”). The Platform is not intended for use by individuals under the age of eighteen (18). If a Platform User is under eighteen (18) years of age, then such Platform User may not use the Platform. If a Motor Carrier User who drives a truck that requires a Commercial Driver’s License is under twenty-one (21) years of age, such Platform User may not use the Platform. TruckAtlas reserves the right, in its sole discretion, to terminate Platform User accounts; revoke any Platform Users, and/or its End Users, access to the Platform or the TruckAtlas Services; or remove or edit any data or content provided by Platform User, or its End Users to the Platform.
1.2 License. Subject to the Platform User’s compliance with the terms of this Agreement, TruckAtlas grants the Platform User a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Platform solely in connection with using the TruckAtlas Services. The Platform User acknowledges and agrees that the Platform is provided under license, and not sold, to the Platform User. The Platform User does not acquire any ownership interest in the Platform under this Agreement, or any other rights thereto other than to use the Platform in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. TruckAtlas and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Platform, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to the Platform User in this Agreement.
1.3 Restrictions. The Platform User agrees to use, and to cause all of its End Users to use, the TruckAtlas Services as set forth in this Agreement. TruckAtlas reserves the right to suspend or terminate use of the Platform to any Platform Users and their respective End Users for violations, or suspected violations, of this Agreement. No Platform User shall, or authorize others to: (a) remove any copyright, trademark or other proprietary notices from any portion of the Platform; (b) reproduce and/or otherwise use the Platform or any of the Platform content (“Content”) for the purpose of developing, training, testing, or improving artificial intelligence or machine learning algorithms or models, or any form of automated decision-making systems; (c) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit any portion of any of the Platform’s components (including software and code), Content, or the TruckAtlas Services for any purpose (including, but not limited to, for purposes of competing with the Platform or TruckAtlas Services) except as expressly permitted by TruckAtlas; (d) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the Platform or any other TruckAtlas technology, except to the extent allowed by applicable law; (e) link to, mirror or frame any portion of the Platform or the TruckAtlas Service; (f) cause or launch any programs or scripts for the purpose of harvesting, scraping, indexing, surveying, downloading or otherwise data mining or extracting any portion of the Platform, Content, metadata or the TruckAtlas Services, or unduly burdening or hindering the operation and/or functionality of any aspect of the Platform or the TruckAtlas Service; (g) attempt to gain unauthorized access to or impair any aspect of the Platform or the TruckAtlas Service; (h) attempt to probe, scan, or text the vulnerability of the Platform or any related system or network or breach any privacy, security or authentication measures.
1.4 Updates. TruckAtlas reserves the right to, from time to time in its sole discretion, develop and provide updates to the Platform, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. The Platform User agrees that TruckAtlas has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. The Platform User further agrees that all Updates will be deemed part of the Platform and be subject to all terms and conditions of this Agreement.
2. ACCOUNT ADMINISTRATION
2.1 Platform User Account. The Platform User shall be provided with access to its account on the Platform through a two-step identification login process. The Platform will enable the Platform User to do one or more of the following (as may be available in the Platform from time to time): (a) post or review open requests for motor carrier services on the Platform (“Job Requests”), (b) if a Motor Carrier, then provide price quotations for and to apply to Job Requests; (c) view and/or provide detailed shipment and shipment transportation information, which may include, without limitation, the Platform User’s name and the names of the Motor Carrier and the Motor Carrier’s Driver together with request time and date, information about the cargo and shipment, the name and other identifying information of the Shipper, location information of the Shipper, information about the equipment being used by the Motor Carrier’s Driver to provide the transportation services, shipment pick-up and delivery time and date, pick-up and delivery address and related facility information, pick-up and delivery facility contact persons and their contact information (which may include phone numbers and email addresses), and trip route, distance and duration (collectively, “Platform Data”); and (d) prepare and review activity reports including Platform Data (collectively, “Platform Data Reports”). The Platform User agrees to use Platform Data and Platform Data Reports solely for legitimate business purposes.
2.2 Administration. Motor Carriers and Shippers may appoint their respective users at their discretion. Each Platform User agrees to (a) maintain all Platform login credentials in confidence; (b) only permit the Account Owner and its End Users, to access the Platform; and (c) update all information of the Account Owner and its End Users as necessary to ensure that it is current, accurate, and complete. The Platform User shall limit access to Platform Data only to personnel who have a legitimate business need to access such Platform Data. The Platform User shall be responsible for all activity that occurs under the Platform User’s login credentials or under its End User’s Platform login credentials.
3. PRIVACY AND DATA SECURITY
3.1 Definition. “Personal Data” means any information that can reasonably relate to an identified or identifiable natural person (which may include certain Platform Data (as defined in Section 2.1)), or that may otherwise be considered “personal data”, “personal information” or equivalent terms under applicable law. Personal Data is subject to TruckAtlas’ Privacy Policy, as may be modified or updated by TruckAtlas from time to time, effective upon posting of an updated version of the Privacy Policy located at https://www.truckatlas.com/privacy-policy. By using the Platform, the Platform User hereby consents and agrees to the Privacy Policy. For End Users who use the Platform, any Personal Data collected through the Platform or pursuant to the TruckAtlas Services is also governed by the Privacy Policy. Please review the information in the Privacy Policy carefully before using the Platform or the TruckAtlas Services.
3.2 Restrictions. The Platform User agrees that (a) any Personal Data obtained from TruckAtlas shall be processed by the Platform User solely for legitimate business purposes and retained only so long as necessary, (b) access to Personal Data obtained from TruckAtlas will be limited to Platform Users, and their respective End Users, who have a legitimate business need to access such Personal Data, and (c) the Platform User, nor any of such Platform User’s End Users, will disclose Personal Data obtained from TruckAtlas to any third party, except as permitted under this Agreement. Platform Data (other than Platform User Content (as defined below)) and any Personal Data obtained from TruckAtlas will at all times remain the property of TruckAtlas. The Platform User shall not rent or sell Personal Data obtained from TruckAtlas for any purpose. The Platform User shall not use Personal Data obtained from TruckAtlas in any way that (i) harms TruckAtlas or (ii) violates applicable law.
3.3 Security. The Platform User agrees to implement appropriate legal, technical, and organizational measures to protect Personal Data obtained from TruckAtlas against unauthorized or unlawful processing and against unauthorized loss, destruction, damage, alteration, or disclosure, as well as any breach or attempted breach of the Platform User security measures (“Information Security Incident”). The Platform User shall promptly notify TruckAtlas in the event that the Platform User learns or has reason to believe that an Information Security Incident has occurred including at least: (a) the nature of the breach of security measures; (b) the types of potentially compromised Personal Data; (c) the duration and expected consequences of the Information Security Incident; and (d) any mitigation or remediation measures taken or planned in response to the Information Security Incident. Upon any such discovery, the Platform User will (i) take all reasonable steps to investigate, remediate, and mitigate the effects of the Information Security Incident, and (ii) provide TruckAtlas with assurances reasonably satisfactory to TruckAtlas that such Information Security Incident will not recur. Additionally, if and to the extent any Information Security Incident occurs as a result of an act or omission of the Platform User, and if TruckAtlas determines that notices (whether in TruckAtlas’ or the Platform User’s name) or other remedial measures are warranted, the Platform User will, at TruckAtlas’ request and at the Platform User’s cost and expense, undertake the aforementioned remedial actions.
4. FEES AND PAYMENTS
4.1 Fees. In consideration of TruckAtlas’ provision of the TruckAtlas Service, the Platform User shall pay to TruckAtlas the monthly subscription fee and all applicable charges (collectively, the “Fees”) without offset on the terms set forth below or as otherwise communicated to the Platform User through the Platform. Fees will be paid by credit card or ACH.
4.2 Nonpayment. In addition to TruckAtlas’ suspension and termination rights in Section 1.3, TruckAtlas further reserves the right to pursue any and all remedies available to it under applicable law, including reporting the Platform User to applicable credit reporting agencies, in the event of any unpaid Fees hereunder. All late payments shall bear interest at 12% per annum or the maximum allowed by applicable law, if less than 12%. The Platform User will be liable for any expenses TruckAtlas incurs in collecting past due payments.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall commence upon the earliest of the Platform User’s initial use of the Platform or acceptance of this Agreement and shall remain in effect until terminated as set forth herein (the “Term”).
5.1 Term. This Agreement shall commence upon the earliest of the Platform User’s initial use of the Platform or acceptance of this Agreement and shall remain in effect until terminated as set forth herein (the “Term”).
6. TRANSPORTATION
6.1 Transportation Definitions.
(a) A “Motor Carrier,” as used in this Agreement, means a Platform User who is a motor carrier or trucking company, including a motor carrier as defined by 49 USC §13102(14) with authority issued by the federal and/or applicable state governments or a motor carrier with authority issued by any other applicable governmental authority, or a company exempt from regulatory requirements.
(b) A “Motor Carrier’s Driver,” as used in this Agreement, means those Motor Carrier End Users, employees, contractors, owner-operators under contract with the Motor Carrier, employees of such owner-operators, or any other service providers of the Motor Carrier assigned to operate motor vehicles providing transportation on behalf of the Motor Carrier.
(c) A “Shipper,” as used in this Agreement, means a Platform User who is the shipper, broker, freight forwarder, consignor, or consignee of a shipment having a present or future interest in the shipment, and any person acting on behalf of any of such parties with respect to a shipment, who is seeking motor carrier services through the Platform.
6.2 Scope of the TruckAtlas Services. TRUCKATLAS IS NOT A MOTOR CARRIER OR BROKER. NO INTERPRETATION OF WRITTEN OR ORAL REMARKS IN ANY AGREEMENT OR DOCUMENT SHALL BE CONSTRUED TO IMPLY TRUCKATLAS IS A MOTOR CARRIER OR BROKER. TRUCKATLAS IS A PROVIDER OF TECHNOLOGY SERVICES ONLY PURSUANT TO WHICH SHIPPERS SEEKING MOTOR CARRIER SERVICES CAN CONNECT WITH MOTOR CARRIERS THAT PROVIDE THOSE SERVICES. TRUCKATLAS DOES NOT PERFORM TRANSPORTATION OF FREIGHT OR ARRANGE FOR TRANSPORTATION OF FREIGHT. THE TERMS AND CONDITIONS APPLICABLE TO THE MOTOR CARRIER SERVICES AND THE TRANSPORTATION OF THE FREIGHT ARE GOVERNED SOLELY BY THE AGREEMENT BETWEEN THE SHIPPER AND THE MOTOR CARRIER, INCLUDING, BUT NOT LIMITED TO DISPUTES OVER SUCH SERVICES. FOR PURPOSES OF CLARIFICATION, TRUCKATLAS IS NOT LIABLE FOR ANY FAILURE OF A MOTOR CARRIER TO PROVIDE MOTOR CARRIER SERVICES AGREED TO BETWEEN SUCH MOTOR CARRIER AND ANY SHIPPER, OR FOR ANY FAILURE OF A SHIPPER TO PAY FOR SUCH MOTOR CARRIER SERVICES.
6.3 Obligations and Responsibilities of the Motor Carrier and Motor Carrier’s Driver.
(a) Route Directions. The Motor Carrier and each of the Motor Carrier’s Drivers are responsible for determining the appropriate route for transportation. Any navigational directions that TruckAtlas offers to the Motor Carrier and any Motor Carrier’s Driver through the Platform are offered as a convenience only, and the Motor Carrier and any of the Motor Carrier’s Drivers have no obligation to follow such navigational directions. Each Motor Carrier and each Motor Carrier End User expressly acknowledge and agree that: (i) the Platform only provides an approximate location of the Motor Carrier’s Driver based upon the mobile device of such Motor Carrier’s Driver, that the Platform does this through the use of third-party service providers such as Google Maps (as described in Section 7.5 below), and that as a result, such location information may not be accurate, timely, or reliable; (ii) any location information used to provide navigational information through the Platform, in addition to being dependent upon third-party service providers such as Google Maps, is also dependent upon the availability and capabilities of Motor Carrier’s and/or Motor Carrier’s Drivers’ mobile device network service provider. The Motor Carrier and each of the Motor Carrier’s Drivers assume all risk and responsibility for using the Platform and any navigational directions offered through the Platform. The Motor Carrier and each of the Motor Carrier’s Drivers’ use of the Platform and its navigational guidance at their own risk.
(b) Compliance with Laws. The Motor Carrier and each of the Motor Carrier’s Drivers shall comply with all applicable laws, including but not limited to, laws prohibiting the use of handheld devices while driving, while using the Platform.
(c) Payments to Motor Carriers’ Drivers. The Motor Carrier is solely responsible for the payment of all fees, charges, employee benefits, or any other compensation due to such Motor Carrier’s Drivers. TruckAtlas is not responsible in any way for payment of fees, charges, employee benefits, or any other compensation due to any Motor Carrier’s Driver.
(d) Accepting Jobs from Shippers. TruckAtlas does not screen, vet, or verify, or make any representations or warranties with regard to the identity or creditworthiness of any Shipper. The Motor Carrier is solely responsible for screening, vetting, or verifying the identity and creditworthiness of any Shipper.
(e) Insurance. Motor carriers are responsible for maintaining levels of insurance required by applicable federal and state law.
(f) Motor Carrier Authority. Motor Carriers are responsible for maintaining active authority with the Federal Motor Carrier Safety Administration (FMCSA).
6.4 Obligations and Responsibilities of the Shipper.
(a) Compliance with Laws. The Shipper and Shipper’s Users shall comply with all applicable laws while using the Platform.
(b) Payments to Motor Carriers. The Shipper is solely responsible for the payment of all fees and charges due any Motor Carrier from whom Shipper accepts motor carrier services through the Platform. TruckAtlas is not responsible in any way for payment of fees and charges due to any Motor Carrier.
(c) Accepting Motor Carrier Services. TruckAtlas does not screen, vet, or verify, or make any representations or warranties with regard to any Motor Carrier or Motor Carrier’s Driver, including, but not limited to: (i) the identity, nature, quality, authority, timeliness, safety, qualifications, accident history, suitability or fitness; (ii) driving record or accident history; (iii) insurance coverage or certificates of insurance of any Motor Carrier or Motor Carrier’s Driver. The Shipper is solely responsible for screening, vetting, or verifying the identity and driving record or accident history of any Motor Carrier.
6.5 Fees for Motor Carrier Services. TruckAtlas does not negotiate or agree to rates or terms for transportation of freight. The Shipper and the Motor Carrier are solely responsible to negotiate rates and terms for the transportation of freight. TruckAtlas may publish, share, and advertise rates offered by Shippers within the Platform, however, TruckAtlas does not guarantee certain payment rates for jobs submitted by Shippers to the Platform. TruckAtlas does not negotiate or agree to rates or terms for transportation of freight. The Shipper and the Motor Carrier are solely responsible to negotiate rates and terms for the transportation of freight.
7. WARRANTY AND DISCLAIMER OF LIABILITY
7.1 Mutual Warranties. Each party represents and warrants that: (a) such party has the full right, power and authority to enter into this Agreement; and (b) such party’s acceptance of this Agreement, as well as such party’s performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which such party is a party.
7.2 Platform User Warranties. The Platform User represents and warrants that: (a) the Platform User has all rights and permissions necessary to provide TruckAtlas with any information provided to TruckAtlas hereunder in connection with Platform User’s and Platform User’s End Users use of the Platform and the TruckAtlas Service; (b) the Platform User is in compliance, and shall remain in compliance during the term of this Agreement, with all applicable local, city, municipal, provincial, state, federal, national, and international laws, rules and regulations; and (c) the Platform user is a legitimate Shipper, Shipper End User, Motor Carrier, or Motor Carrier End User.
7.3 Disclaimer of Warranties. THE PLATFORM AND TRUCKATLAS SERVICES ARE PROVIDED TO PLATFORM USER AND ITS END USERS “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRUCKATLAS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PLATFORM WILL MEET PLATFORM USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. TRUCKATLAS DOES NOT GUARANTEE THE STORAGE, BACK UP, OR AVAILABILITY OF ANY DATA PROVIDED BY ANY PLATFORM USER, OR ANY OF ITS END USERS, CREATED IN OR PROVIDED TO THE PLATFORM. THE PLATFORM AND THE TRUCKATLAS SERVICES ARE USED BY PLATFORM USER AT PLATFORM USER’S OWN RISK.
7.4 Third-Party Materials. The Platform may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). The Platform User acknowledges and agrees that TruckAtlas is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. TruckAtlas does not assume and will not have any liability or responsibility to the Platform User or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to the Platform User, and the Platform User access and use them entirely at the Platform User’s own risk and subject to such third parties’ terms and conditions.
7.5 Third-Party Services. To use the Platform and/or the TruckAtlas Services, certain third-party services may be required. Such Third-Party Services may include:
(a) Mobile Network Provider Services. Platform Users are responsible for obtaining the data network access necessary for it and its End Users to access the Platform and the TruckAtlas Services on such device. The Platform User’s and its End User’s mobile network’s data and messaging rates and fees may apply if the Platform User or its End Users access or use the Platform and the TruckAtlas Services from their respective mobile devices. The Platform User and/or its End Users are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Platform and the TruckAtlas Services and any updates thereto. TruckAtlas does not guarantee that the Platform or the TruckAtlas Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Platform and TruckAtlas Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. TruckAtlas is not responsible for any resulting delays, delivery failures, or damage, loss, injury, or death.
(b) Navigation Services.
(i) Acceptable Use Policy of Google, Inc. (“Google”) located at: https://www.google.com/enterprise/earthmaps/legal/us/maps_AUP.html, Google’s Map Terms, located at http://maps.google.com/help/terms_maps.html, and the additional restrictions set forth in Google`s Legal Notices page, located at http://www.google.com/intl/en-us/help/legalnotices_maps.html, or such other URLs as Google may designate from time to time in each case.
(ii) Microsoft Bing Maps Platform APIs Terms of Use located at: https://www.microsoft.com/en-us/maps/product.
(iii) Apple Maps Terms of Use located at: https://www.apple.com/legal/internet-services/maps/terms-en.html#:~:text=YOU%20EXPRESSLY%20ACKNOWLEDGE%20AND%20AGREE,OR%20STATUTORY%2C%20INCLUDING%2C%20BUT%20NOT.
(iv) Waze Terms of Use located at: https://support.google.com/waze/answer/12373727?sjid=9344748658527835007-NA.
(v) MapBox Terms of Use located at: https://www.mapbox.com/legal/tos.
Motor Carrier’s, or any Motor Carrier User’s, failure to comply with the aforementioned Third-Party Terms may result in suspension or termination, or both of Motor Carrier’s, or such Motor Carrier’s User’s, right to use and access the Platform and/or TruckAtlas’ Services.
8. INDEMNIFICATION; LIMITATIONS
8.1 Indemnification. The Platform User agrees to indemnify, defend, and hold harmless TruckAtlas and its officers, directors, investors, shareholders or other equity holders, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to Platform Users and its End Users use or misuse of the Platform or TruckAtlas Services or the Platform User’s, or any of its End Users, breach of this Agreement.
8.1 LIMITATIONS OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TRUCKATLAS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO THE PLATFORM USER’S OR ITS END USERS’ USE OF OR INABILITY TO USE THE PLATFORM OR THE TRUCKATLAS SERVICES FOR:
(a) PERSONAL INJURY, DEATH, PROPERTY DAMAGE, CARGO DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY THE PLATFORM USER FOR THE USE OF THE PLATFORM OR THE TRUCKATLAS SERVICES.THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR THE PLATFORM USER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO THE PLATFORM USER.
8.2 PLATFORM USER TIME LIMITATION TO BRING ACTION. REGARDLESS OF ANY OTHER STATUTE OF LIMITATIONS PROVIDED UNDER APPLICABLE LAW, NO CLAIM, LITIGATION OR ACTION OF ANY KIND, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT AND/OR THE TRUCKWISE SERVICE MAY BE BROUGHT BY THE PLATFORM USER AGAINST TRUCKWISE MORE THAN ONE YEAR AFTER THE OCCURRENCE OF THE CIRCUMSTANCES UNDERLYING SUCH CLAIM, LITIGATION OR ACTION.
9. PROPRIETARY RIGHTS.
9.1 Publicity. The Platform User consents to TruckAtlas identifying the Platform User as a customer of TruckAtlas in any publicity, press activities, marketing or other public relations and grants TruckAtlas and its affiliates permission to use the name and logo of the Platform User in connection therewith.
9.2 Ownership. TruckAtlas and its affiliates are and shall remain the owners of all right, title and interest in and to the TruckAtlas Service, the Platform, and its other products and technologies including any updates, enhancements and new versions thereof, and all related documentation and materials provided or available to the Platform User or its End Users in connection with this Agreement.
Motor Carrier Feedback and Content.
(a) Feedback. The Platform User acknowledges TruckAtlas’ need to be able to freely use any feedback provided by the Platform User about the Platform, the TruckAtlas Services, and any related services or technologies (e.g., improvements, fixes, errors, bugs, etc.) (collectively, “Feedback”) and to own any improvements to the Platform, the TruckAtlas Services, and any related services or technologies made by using or incorporating such Feedback. Accordingly, the Platform User hereby assigns to TruckAtlas any rights the Platform User may have, including all intellectual property rights, in the Feedback and TruckAtlas may exercise its ownership rights to such Feedback and intellectual property rights without compensation, attribution, or accounting to the Platform User. Without additional consideration, the Platform User agrees to perform all acts reasonably necessary to perfect such rights in TruckAtlas.
(b) Content. TruckAtlas may, in TruckAtlas’ sole discretion, permit the Platform User from time to time to submit, upload, publish or otherwise make available to TruckAtlas through the Platform or other TruckAtlas Services textual, audio, visual or other content and information, including load information, commentary and feedback, ratings and reviews (including of carriers and facilities), initiation of support requests, and submission of entries for competitions and promotions (“Platform User Content”). Any Platform User Content provided by the Platform User remains the Platform User’s property. However, by providing Platform User Content to TruckAtlas, the Platform User grants TruckAtlas a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Platform User Content in all formats and distribution channels now known or hereafter devised, without further notice to or consent from the Platform User, and without the requirement of payment to the Platform User or any other person or entity. The Platform User agrees not to provide Platform User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by TruckAtlas in its sole discretion, whether or not such material may be protected by law. TruckAtlas may, but shall not be obligated to, review, monitor, or remove Platform User Content, at TruckAtlas’ sole discretion and at any time and for any reason, without notice to the Platform User.
The Platform User represents and warrants that: (i) the Platform User either is the sole and exclusive owner of all Platform User Content or the Platform User has all rights, licenses, consents and releases necessary to grant TruckAtlas the license to the Platform User Content as set forth above; and (ii) neither the Platform User Content, nor Platform User’s submission, uploading, publishing or otherwise making available of such Platform User Content, nor TruckAtlas’ use of the Platform User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
10. GENERAL CONDITIONS
Governing Law.
(a) Governing Law. Except to the extent governed by applicable United States federal law, this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its choice or conflict of laws provisions.
(b) Arbitration. The Platform User agrees that any dispute, claim or controversy arising out of or relating to this Agreement (collectively, “Disputes”) will be settled by binding arbitration between the Platform User and TruckAtlas, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. The Platform User acknowledges and agrees that the Platform User and TruckAtlas are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both the Platform User and TruckAtlas otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section 10.1(b) will be deemed void. Except as provided in the preceding sentence, this Section 10.1(b) shall survive any termination of this Agreement.
(i) Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section.
(ii) Arbitration Process. Prior to initiating arbitration, the Platform User and TruckAtlas each agree to notify the other party in writing of any dispute and to attempt to negotiate an informal resolution. Notice to TruckAtlas must be sent to: TruckWise, LLC, c/o John C. Ethridge, 1105 W. Peachtree Street N.E., Suite 1000, Atlanta, GA 30309. Neither party shall initiate arbitration until 30 days after the notice is sent. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. A party initiating an arbitration against TruckAtlas must send the written Demand for Arbitration to: TruckWise, LLC, c/o John C. Ethridge, 1105 W. Peachtree Street NE, Suite 1000, Atlanta, GA 30309. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Georgia and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
(iii) Arbitration Location and Procedure. Unless the Platform User and TruckAtlas otherwise agree, arbitration will be conducted in the county where the Platform User resides. If the Platform User’s claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents the Platform User and TruckAtlas submit to the arbitrator, unless the Platform User requests a hearing, or the arbitrator determines that a hearing is necessary. If the Platform User’s claim exceeds $10,000, the Platform User’s right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
(iv) Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with this Agreement of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
10.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
10.3 Export Regulation. The Platform may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Platform User shall not, directly or indirectly, export, re-export, or release the Platform to, or make the Platform accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Platform User shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Platform available outside the US.
10.4 Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
10.5 Assignment. This Agreement is not transferable and may not be assigned by the Platform User, in whole or in part, without the prior written consent of TruckAtlas. Subject to the foregoing, this Agreement shall be binding upon all successors and assigns of a party.
10.6 Attorney’s Fees. In any litigation between the parties, the non-prevailing party shall pay the prevailing party the prevailing party’s reasonable attorney fees and all other costs of proceedings incurred in enforcing this Agreement.
10.7 Headings. Section headings are for convenience only and shall not be considered in the interpretation of this Agreement.
10.8 Independent Enterprises. TruckAtlas and the Platform User are and shall remain independent business enterprises. Neither party is the representative or agent of the other and neither party shall have any power to assume any obligations on behalf of the other. The Platform User hereby represents that the individual accepting this Agreement is authorized by the Platform User to bind, and does hereby bind, the Platform User to the terms hereof. This Agreement does not create a joint venture, joint enterprise or partnership between the parties.
10.9 Confidentiality. The Platform User agrees to hold in confidence any confidential and proprietary information of TruckAtlas that it becomes aware of in connection with the TruckAtlas Service.
10.10 Copyright Infringement. TruckAtlas respects the intellectual property rights of others and expects its users to do the same.
It is TruckAtlas’ policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.
In accordance with the Digital Millennium Copyright Act of 1998 and in recognition of various international copyright laws, TruckAtlas will respond expeditiously to notices sent to TruckAtlas’ Designated Copyright Agent (identified below) regarding alleged third-party copyright infringements on the TruckAtlas website or other TruckAtlas-owned and publicly accessible digital properties (the "Site(s)").
A copyright owner, person authorized to act on behalf of one, or person authorized to act under any exclusive right under copyright may submit allegations of copyright infringements on the Site(s) by completing the following DMCA Notice of Alleged Infringement and delivering it to TruckAtlas’ Designated Copyright Agent. Upon receipt of this Notice, TruckAtlas will expeditiously remove or block access to the allegedly infringing content, notify the alleged third-party infringer of the same, and provide the third-party an opportunity to submit a counter-notice to dispute the alleged infringement. If a counter-notice is submitted, TruckAtlas will promptly forward it to the complainant and restore the removed or blocked content within 10-14 business days, unless the complainant submits evidence that it has filed a lawsuit against the alleged third-party infringer regarding the allegedly infringing content.
DMCA Notice of Alleged Infringement (“Notice”)
(a) Identify the copyrighted work that has been infringed, or - if multiple copyrighted works are covered by this Notice - provide a representative list of the copyrighted works that have been infringed.
(b) Identify the infringing content and provide sufficient information for TruckAtlas to locate the infringing content, including, if applicable, the URL(s) of the Site(s) where the content may be found.
(c) Provide contact information, e.g., mailing address, telephone number, and email address, of the person submitting this DMCA Notice (e.g., the copyright owner or copyright owner’s agent).I
(d) Include both of the following statements in the body of the Notice:"I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
(e) Provide the full legal name and an electronic or physical signature of the person submitting this Notice (e.g., the copyright owner or copyright owner’s agent).
(f) Deliver this Notice, with all items completed, to TruckAtlas’ Designated
Copyright Agent:
Smith, Gambrell, & Russell, LP
Attn: John Ethridge
1105 W. Peachtree St. N.E.
Suite 1000
Atlanta, GA 30309